You are on page 1of 55

780 Current Law Journal [2019] 5 CLJ

ALMA NUDO ATENZA v. PP & ANOTHER APPEAL A

FEDERAL COURT, PUTRAJAYA


RICHARD MALANJUM CJ
DAVID WONG DAK WAH CJ (SABAH & SARAWAK)
RAMLY ALI FCJ
BALIA YUSOF WAHI FCJ B
ALIZATUL KHAIR OSMAN FCJ
ROHANA YUSUF FCJ
TENGKU MAIMUN TUAN MAT FCJ
ABANG ISKANDAR FCJ
NALLINI PATHMANATHAN FCJ C
[CRIMINAL APPEALS NO: 05-94-05-2017(B)
& 05-193-08-2017(W)]
5 APRIL 2019

CRIMINAL LAW: Dangerous drugs – Trafficking – Presumption of – D


Constitutional validity of s. 37A of Dangerous Drugs Act 1952 (‘DDA’) with
reference to arts. 5, 8 and 121 of Federal Constitution (‘FC’) – Allowing usage of
double presumptions to find possession as well as trafficking for charge under s. 39B
of DDA – Principle of separation of powers – Whether Parliament empowered only
to make laws – Whether judicial power vested exclusively in courts – Whether using E
presumption of possession to invoke presumption of trafficking under s. 37 of DDA
harsh, oppressive and impermissible – Whether s. 37A of DDA offended requirement
of fairness under arts. 5 and 8 of FC – Whether right to fair trial and presumption
of innocence under art. 5 may be qualified by reference to principle of proportionality
– Whether statutory words ‘deemed possession’ under s. 37(d) of DDA could be
F
equated to ‘found possession’ to invoke presumption of trafficking under s. 37(da) of
DDA – Whether plain reading of s. 37(d) and (da) permit concurrent application
of both presumptions in prosecution of drug trafficking offence – Whether s. 37A
of DDA prima facie violated presumption of innocence since it permitted accused to
be convicted while reasonable doubt exists – Whether s. 37A of DDA
unconstitutional for violating arts. 5(1) read with art. 8(1) of FC – Whether G
convictions and sentences of accused persons quashed under s. 39B and substituted
with convictions under s. 12(1) of DDA
CONSTITUTIONAL LAW: Presumptions – Dangerous drugs – Offences –
Constitutional validity of s. 37A of Dangerous Drugs Act 1952 (‘DDA’) with
H
reference to arts. 5, 8 and 121 of Federal Constitution (‘FC’) – Allowing usage of
double presumptions to find possession as well as trafficking for charge under s. 39B
of Dangerous Drugs Act 1952 – Principle of separation of powers – Whether
Parliament empowered only to make laws – Whether judicial power vested

I
[2019] 5 CLJ Alma Nudo Atenza v. PP & Another Appeal 781

A exclusively in courts – Whether using presumption of possession to invoke


presumption of trafficking under s. 37 of DDA harsh, oppressive and impermissible
– Whether s. 37A of DDA offended requirement of fairness under arts. 5 and 8 of
FC – Whether right to fair trial and presumption of innocence under art. 5 may
be qualified by reference to principle of proportionality – Whether statutory words
B ‘deemed possession’ under s. 37(d) could be equated to ‘found possession’ to invoke
presumption of trafficking under s. 37(da) – Whether plain reading of s. 37(d) and
(da) permit concurrent application of both presumptions in prosecution of drug
trafficking offence – Whether s. 37A prima facie violated presumption of innocence
since it permitted accused to be convicted while reasonable doubt exists – Whether
C
s. 37A of DDA unconstitutional for violating arts. 5(1) read with art. 8(1)
CONSTITUTIONAL LAW: Fundamental liberties – Presumption of innocence –
Right to fair trial and presumption of innocence under art. 5 of Federal Constitution
(‘FC’) – Offence of trafficking in dangerous drugs – Allowing usage of double
presumptions to find possession as well as trafficking for charge under s. 39B of
D Dangerous Drugs Act 1952 (‘DDA’) – Constitutional validity of s. 37A of DDA with
reference to arts. 5, 8 and 121 of FC – Whether using presumption of possession to
invoke presumption of trafficking under s. 37 of DDA harsh, oppressive and
impermissible – Whether s. 37A offended requirement of fairness under arts. 5 and
8 of FC – Whether right to fair trial and presumption of innocence under art. 5 may
be qualified by reference to principle of proportionality – Whether plain reading of
E
s. 37(d) and (da) of DDA permit concurrent application of both presumptions in
prosecution of drug trafficking offence – Whether s. 37A prima facie violated
presumption of innocence since it permitted accused to be convicted while reasonable
doubt exists – Whether s. 37A of DDA unconstitutional for violating arts. 5(1) read
with art. 8(1) of FC
F
The common and central issue in the present appeals was on the
constitutional validity of s. 37A of the Dangerous Drugs Act 1952 (‘DDA’)
with reference to arts. 5, 8 and 121 of the Federal Constitution (‘FC’). Each
of the appellants in these two appeals was charged before and convicted by
two different trial judges for drug trafficking. However, since both appeals
G
were premised on one common and crucial issue, this court proceeded to
hear them together. The first appellant in the first appeal, a national of the
Philipphines, was caught red-handed carrying a bag containing 2556.4g of
methamphetamine at the Kuala Lumpur International Airport (‘KLIA’) and
was charged with an offence of trafficking in dangerous drugs under
H s. 39B(1)(a) of the DDA. The High Court Judge ruled that (i) for the element
of possession, the presumption under s. 37(d) of the DDA could be invoked
against the first appellant; and (ii) the bag was under the custody and control
of the first appellant and that there was evidence to indicate the knowledge

I
782 Current Law Journal [2019] 5 CLJ

of the first appellant. On the issue of trafficking, the trial judge ruled that in A
view of s. 37A of the DDA, the prosecution was allowed to invoke another
presumption under s. 37(da)(xvi) as the weight of the methamphetamine
exceeded 50g. Hence, the first appellant was convicted and charged and
sentenced to death. The second appellant in the second appeal, a Thai
national, was found to have brought a bag with her from Bahrain containing B
693.4g of cocaine and was thus charged with trafficking in dangerous drugs
under s. 39B(1)(a) of the DDA. The High Court observed that s. 37A of the
DDA would allow the use of double presumptions, namely, the
presumptions under s. 37(d) and (da) could be used together to prove
‘possession and knowledge’ and thereafter to prove ‘trafficking.’ The High C
Court Judge found that the elements of custody and control against the
second appellant were proven, thus s. 37(d) applied and the second appellant
was presumed to have possession and knowledge of the drugs. Further, since
the weight of the cocaine exceeded the statutory stipulated weight, it was also
ruled that s. 37(da)(ix) also applied. The High Court held that the second
D
appellant failed to adduce evidence to rebut the presumptions under s. 37(d)
and (da) of the DDA and accordingly, the second appellant was found guilty
as charged and sentenced to death. Aggrieved, both the appellants appealed
respectively against the said decisions. The Court of Appeal dismissed both
the appellants’ appeals. Before this court, both the appellants focused their
submissions solely on the constitutionality of s. 37A of the DDA, which E
appeared to allow the use of double presumptions to find possession as well
as trafficking for a charge under s. 39B of the DDA. The appellants’ main
ground for challenging the validity of s. 37A was based on the principle of
separation of powers. The appellants submitted (i) under art. 74(1) of the FC,
Parliament is empowered only to make laws; (ii) under art. 121(1), judicial F
power is vested exclusively in the courts; (iii) in the case of Muhammed
Hassan v. PP (‘Muhammed Hassan’), the Federal Court declared that using the
presumption of possession to invoke the presumption of trafficking under
s. 37 of the DDA was harsh, oppressive and thus impermissible; (iv) once
the Federal Court had exercised judicial power on the matter, the Parliament G
could not interfere with the exercise by amending the DDA to legalise what
had been declared illegal; and (v) by enacting s. 37A to overrule the decision
of Muhammed Hassan, Parliament had exercised the judicial power of
declaring law. The second ground of challenge raised by the appellants was
based on arts. 5 and 8 of the FC. The appellants submitted that (i) art. 5(1)
H
includes the right to a fair trial, which encompasses both procedural and
substantive fairness; (ii) for all intents and purposes, s. 37A of the DDA has
the effect of reversing the burden onto an accused to prove his or her
innocence; (iii) where double presumptions are applied, it has been held in

I
[2019] 5 CLJ Alma Nudo Atenza v. PP & Another Appeal 783

A Muhammed Hassan that the burden on the appellants to rebut both


presumptions on the balance of probabilities was oppressive, unduly harsh
and unfair; (iv) s. 37A offended the requirement of fairness housed under
arts. 5 and 8 of the FC; (v) the right in art. 5(1) is absolute and could not
be derogated; and (vi) the Federal Court in Public Prosecutor v. Gan Boon Aun
B had erred in holding that the right to a fair trial and the presumption of
innocence under art. 5 may be qualified by reference to the principle of
proportionality.
Held (quashing convictions and sentences of appellants under s. 39B of
DDA; substituting their respective convictions to one of possession under
C s. 12(1) of DDA)
Per Richard Malanjum CJ delivering the judgment of the court:
(1) At the commencement of the hearing of these appeals, the respondent
raised the issue that the appellants had not obtained leave from the
Federal Court to challenge the constitutional validity of s. 37A of the
D DDA. It was submitted that pursuant to art. 4(4) of the FC, the
appellants ought to have sought leave from the Federal Court to mount
the present challenge. Article 4(4) only applies where the validity of
a law is challenged on the ground that it makes provision with respect
to a matter on which Parliament or the State Legislature has no power
E to make laws. The central question was related to the subject matter
of the impugned law. Leave from the Federal Court is only required
in proceedings for a declaration that a law is invalid on that specific
ground. In such proceedings, the Federal Court has exclusive original
jurisdiction to determine the matter. In the present appeals, the
F legislative competence of Parliament in respect of the subject matter
of s. 37A of the DDA was not an issue. The basis of the appellants’
challenge was that by enacting s. 37A which reversed the decision of
the Federal Court in Muhammed Hassan, Parliament had usurped the
judicial power of the Federation and fell foul of art. 121(1) of the FC.
The appellants’ reference to art. 74(1) was merely to draw attention
G
to the words ‘Parliament may make law’ in support of that basis. Since
the validity of s. 37A was not challenged on the ground that it related
to a matter on which Parliament had no power to make laws, the
challenge did not fall within the scope of art. 4(1) and leave was not
required from this court. Therefore, the preliminary objection by the
H respondent had no merit and was dismissed accordingly. (paras 51, 55,
56, 61 & 62)
(2) The separation of powers between the Legislature, the Executive and
the Judiciary is a hallmark of a modern democratic State. Thus, the
separation of powers is not just a matter of administrative efficiency.
I
At its core is the need for a check and balance mechanism to avoid the
risk of abuse when power is concentrated in the same hands. Between
784 Current Law Journal [2019] 5 CLJ

the three branches of Government, ‘all the parts of it form a mutual A


check upon each other. The three parts, each part regulates and is
regulated by the rest.’ The separation of powers provides a brake to
the exercise of Government power, the institutions are designed ‘not
only to cooperate but to conflict, as part of the pulley of checks and
balances.’ This court had, on several occasions, recognised that the B
principle of separation of powers and the power of the ordinary courts
to review the legality of a State action, are sacrosanct and form part
of the basic structure of the FC. Whether an enacted law is
constitutionally valid is always for the courts to adjudicate and not for
Parliament to decide. (paras 69-72 & 74) C
(3) Section 37A does not purport to overrule the decision of the Federal
Court in Muhammed Hassan. The finality of the decision in that case
in respect of the rights and liabilities of the parties was unaffected. The
effect of inserting s. 37A was to alter generally the law upon which
that decision was based. Such an amendment was a permissible D
exercise of legislative power and did not encroach into the realm of
judicial power. In inserting s. 37A, Parliament was only complying
with the opinion of the Federal Court therein which stated that
presumption upon presumption could only be permitted if ‘upon the
wordings of the two subsections, such an intention of the Parliament
E
is clear.’ As the bulwark of the FC and the rule of law, it is the duty
of the courts to protect the FC from being undermined by the whittling
away of the principles upon which it is based. The courts should
jealously ensure that the powers of the Legislature and Executive are
kept within their intended limits. Indeed, the role of the courts is
F
generally to apply and interpret the law as laid down by Parliament.
It is not for the courts to refuse to apply a new law solely on the
ground that a court had previously expressed a particular view to the
unamended version of the law. Thus, the first ground of challenge
raised by the appellants was dismissed. (paras 88, 89 & 91-93)
G
(4) Article 5(1) is the foundational fundamental right upon which other
fundamental rights enshrined in the FC draw their support. Depriving
a person of his right under art. 5(1), the consequence is obvious in that
his other rights under the FC would be illusory or unnecessarily
restrained. But, at the same time, art. 5(1) is not all encompassing and
each right protected in Part II has its own perimeters. Hence, the H
provisions of the FC should be read harmoniously. ‘Law’ as defined
in art. 160(2) of the FC read with s. 66 of the Interpretation Acts 1948
and 1967 includes the common law of England. The concept of rule
of law forms part of the common law of England. The ‘law’ in
art. 5(1) and in other fundamental liberties provisions in the FC must I
[2019] 5 CLJ Alma Nudo Atenza v. PP & Another Appeal 785

A therefore be in tandem with the concept of rule of law and not rule by
law. A central tenet of the rule of law is the equal subjection of all
persons to the ordinary law. People should be ruled by the law and
be able to be guided by it. Thus, the law must be capable of being
obeyed. (paras 98, 101 & 103)
B (5) Section 37A of the DDA begins with the phrase ‘notwithstanding any
written law or rule of law.’ The words ‘rule of law’ in s. 37A refer
to implied ancillary rules, such as the rules of procedure or evidence.
It does not purport to exclude the rule of law as a legal concept. If it
were to be interpreted otherwise, then that would be a rule by law and
C could not be within the ambit of the term ‘law’ in art. 5(1) of the FC
and hence unconstitutional. The principle of the rule of law, being a
constitutional fundamental, could not be abrogated by mere statutory
words. Accordingly, art. 5(1) which guarantees that a person shall not
be deprived of his life or personal liberty save in accordance with law
D envisages a State action that was fair both in point of procedure and
substance. The fundamental principle of presumption of innocence,
long recognised at common law, was included in the phrase ‘in
accordance with law’. However, the presumption of innocence is
subject to implied limitations. A degree of flexibility was therefore
required to strike a balance between the public interest and the right
E
of an accused person. (paras 108-110 & 112)
(6) When any State action is challenged as violating a fundamental right,
such as the right to life or personal liberty under art. 5(1), art. 8(1)
would at once be engaged such that the action must meet the test of
F proportionality. Proportionality is an essential requirement of any
legitimate limitation of an entrenched right. Proportionality calls for
the balancing of different interests. In the balancing process, the
relevant considerations include the nature of the right, the purpose for
which the right was limited, the extent and efficacy of the limitation,
and whether the desired end could reasonably be achieved through
G
other means less damaging to the right in question. The presumption
of innocence is by no means absolute. Derogations or limits to the
prosecution’s duty to prove an accused’s guilt beyond a reasonable
doubt are carefully circumscribed by reference to some form of
proportionality test. The application of the proportionality test in this
H context strikes the appropriate balance between the competing
interests of an accused and the State. The doctrine of proportionality
and the all pervading nature of art. 8 form part of the common law of
Malaysia, developed by our courts based on a prismatic interpretation
of the FC without recourse to case law relating to the European
I Convention of Human Rights. As such, the appellants’ assertion that
786 Current Law Journal [2019] 5 CLJ

art. 5 conferred an absolute right upon an accused to be presumed A


innocent until proven guilty and not subject to the doctrine of
proportionality while disregarding art. 8, was unsupported by
authority and without basis. (paras 119, 120, 125 & 126)
(7) Section 37A was legislated to permit the invocation of the two
presumptions yet there was no amendment to the wording in B
sub-s. 37(da). The Federal Court held in Muhammed Hassan that based
on the clear and unequivocal meaning of the statutory wording
‘deemed possession’ under s. 37(d) could not be equated to ‘found
possession’ so as to invoke the presumption of trafficking under
s. 37(da). To do so would be contrary to the ordinary meaning of the C
statutory language. As such, despite the insertion of s. 37A, a plain
reading of the wording in subsections (d) and (da) does not permit the
concurrent application of both the said presumptions in the
prosecution of a drug trafficking offence. (para 128)
(8) To determine the effect of s. 37A, it is helpful first to consider D
generally the nature of presumptions. A true presumption takes effect
when, upon the proof of one fact (the basic fact), the existence of
another fact (presumed fact) is assumed in the absence of further
evidence. Presumptions can be categorised into presumptions of law
or presumptions of fact. The former involves actual legal rules, E
whereas the latter are no more than frequently recurring examples of
circumstantial evidence. For the presumption under s. 37(d), a
person’s custody or control of a thing containing a dangerous drug,
proved as a fact (the basic fact) was relevant to, but not decisive of,
his possession and knowledge of the dangerous drug which need not F
be proved but merely deemed (the presumed fact). As for the
presumption under s. 37(da), a person ‘found’ (which denotes the need
first for an affirmative finding based on the evidence adduced) to be
in possession of drugs exceeding a stipulated weight has a logical
bearing on the inference of trafficking. The presumptions are largely
G
a matter of logical inference. (paras 132-136)
(9) The presumptions in s. 37 are rebuttable. The phrase ‘until the
contrary is proved’ imposes a legal burden on an accused to prove on
a balance of probabilities that he was not in possession and had no
knowledge of the drug (s. 37(d)), or that he was not in possession up H
to the statutory limit in weight of the drug for the purpose of
trafficking (s. 37(da)). The weight of evidence required to rebut the
presumption would depend on the circumstances of each case. The
word ‘shall’ in both subsections indicates that each of the
presumptions is mandatory in nature. However, the word ‘may’ in
I
[2019] 5 CLJ Alma Nudo Atenza v. PP & Another Appeal 787

A s. 37A suggests that the cumulative use of double or multiple


presumptions is discretionary. But just because it is discretionary it
does not ipso facto escape a constitutionality scrutiny. (paras 137 & 138)
(10) The effect of s. 37A on the operation of the two presumptions is
(i) once the prosecution proves that an accused has the custody and
B control of a thing containing a dangerous drug, the accused is
presumed to have possession and knowledge of the drug under s. 37(d).
The ‘deemed possession’ presumed by virtue of s. 37(d) is then used
to invoke a further presumption of trafficking under s. 37(da), if the
quantity of the drug involved exceeds the statutory weight limit; (ii)
C s. 37A thus permits a ‘presumption upon a presumption’; and (iii) as
such for a charge of drug trafficking all that is required of the
prosecution to establish a prima facie case is to prove custody and
control on the part of the accused and the weight of the drug. The legal
burden then shifts to the accused to disprove the presumptions of
D possession and knowledge (s. 37(d) and trafficking (s. 37(da) on a
balance of probabilities). Hence, s. 37A prima facie violated the
presumption of innocence since it permitted an accused to be
convicted while a reasonable doubt may exist. (paras 139 & 141)
(11) The presumptions under s. 37(d) and (da) relate to the three central
E and essential elements of the offence of drug trafficking, namely
possession of a drug, knowledge of the drug and trafficking. Once the
essential ingredients of the offence are presumed, the accused is placed
under a legal burden to rebut the presumptions on a balance of
probabilities. It is a grave erosion to the presumption of innocence
F housed in art. 5(1) of the FC. But the most severe effect, tantamount
to being harsh and oppressive, arising from the application of a
‘presumption upon presumption’ is that the presumed element of
possession under s. 37(d) is used to invoke the presumption of
trafficking under s. 37(da) without any consideration that the element
of possession in s. 37(da) requires a ‘found’ possession and not a
G
‘deemed’ possession. The phrase ‘any person who is found in
possession of’ entails an affirmative finding of possession based on
adduced evidence. To invoke a presumption of trafficking founded not
on proof of possession but on presumed possession based on proof of
mere custody and control, constituted a grave departure from the
H general rule that the prosecution was required to prove the guilt of an
accused beyond a reasonable doubt. (paras 146-148)
(12) Based on the factors above – the essential ingredients of the offence,
the imposition of a legal burden, the standard of proof required in
rebuttal, and the cumulative effect of the two presumptions – this
I
court considered that s. 37A constituted a most substantial departure
788 Current Law Journal [2019] 5 CLJ

from the general rule, which could not be justified and was A
disproportionate to the legislative objective it served. It was far from
clear that the objective could not be achieved through other means less
damaging to the accused’s fundamental right under art. 5. In light of
the seriousness of the offence and the punishment it entailed, the
unacceptably severe incursion into the right of the accused under B
art. 5(1) was disproportionate to the aim of curbing crime, hence failed
to satisfy the requirement of proportionality housed under art. 8(1).
Accordingly, s. 37A was unconstitutional for violating art. 5(1) read
with art. 8(1) of the FC. The impugned section was hereby struck
down. Since there was no challenge to the use of a single presumption C
in these appeals, the invocation of s. 37(d) by the trial judges did not
cause any miscarriage of justice to the detriment of the appellants.
Hence, this court hereby quashed the convictions and sentences of
both the appellants under s. 39B of the DDA and hereby substituted
their respective convictions to one of possession under s. 12(1) and
D
punishable under s. 39A(2) of the DDA. (paras 150-153)
Bahasa Malaysia Headnotes
Isu utama dalam rayuan-rayuan ini adalah kesahihan perlembagaan
s. 37A Akta Dadah Berbahaya 1952 (‘ADB’) merujuk pada per. 5, 8 dan 121
Perlembagaan Persekutuan (‘PP’). Setiap perayu dalam kedua-dua rayuan E
dituduh dan disabitkan oleh dua hakim bicara berbeza atas pengedaran
dadah. Walau bagaimanapun, oleh kerana kedua-dua rayuan berdasarkan
satu isu yang sama dan penting, mahkamah ini mendengarnya bersekali.
Perayu pertama dalam rayuan pertama, seorang warganegara Filipina, telah
ditangkap membawa sebuah beg mengandungi 2556.4g methamphetamine di F
Lapangan Terbang Kuala Lumpur (‘KLIA’) dan dituduh dengan kesalahan
mengedar dadah berbahaya bawah s. 39B(1)(a) ADB. Hakim Mahkamah
Tinggi memutuskan bahawa (i) untuk elemen milikan, anggapan bawah
s. 37(d) ADB boleh digunakan terhadap perayu pertama; dan (ii) beg itu
bawah milikan dan kawalan perayu pertama dan terdapat keterangan
G
menunjukkan pengetahuan oleh perayu pertama. Berkenaan isu pengedaran,
hakim bicara memutuskan mengikuti s. 37A ADB, pihak pendakwaan
dibenarkan menggunakan anggapan lain bawah s. 37(da)(xvi) kerana berat
methamphetamine melebihi 50g. Oleh itu, perayu pertama disabitkan dan
dijatuhkan hukuman mati. Perayu kedua dalam rayuan kedua, seorang
warganegara Thailand, didapati membawa beg dari Bahrain mengandungi H
693.4g kokain dan dengan itu dituduh mengedar dadah berbahaya bawah
s. 39B(1)(a) ADB. Mahkamah Tinggi, s. 37A ADB membenarkan
penggunaan anggapan berganda, iaitu anggapan bawah s. 37(d) dan (da) boleh
digunakan bersama-sama untuk membuktikan ‘milikan dan pengetahuan’ dan
seterusnya membuktikan ‘pengedaran’. Mahkamah Tinggi mendapati I
[2019] 5 CLJ Alma Nudo Atenza v. PP & Another Appeal 789

A elemen-elemen jagaan dan kawalan terhadap perayu kedua dibuktikan, oleh


itu s. 37(d) diguna pakai dan perayu kedua dianggap mempunyai milikan dan
pengetahuan dadah-dadah itu. Seterusnya, oleh kerana berat kokain melebihi
berat statutori yang ditetapkan, diputuskan bahawa s. 37(da)(ix) juga
terpakai. Mahkamah Tinggi memutuskan perayu kedua gagal mengemukakan
B keterangan untuk menyangkal anggapan-anggapan bawah s. 37(d) dan (da)
ADB dan dengan itu, perayu kedua didapati bersalah dan dihukum mati.
Terkilan, kedua-dua perayu masing-masing merayu terhadap keputusan-
keputusan tersebut. Mahkamah Rayuan menolak kedua-dua rayuan perayu-
perayu. Di hadapan mahkamah ini, kedua-dua perayu menumpukan hujahan
C
mereka pada keperlembagaan s. 37A ADB, yang membenarkan penggunaan
anggapan berganda untuk membuat dapatan milikan dan juga pengedaran
bawah pertuduhan s. 39B ADB. Hujahan utama perayu-perayu dalam
membantah kesahihan s. 37A adalah berdasarkan prinsip pemisahan kuasa.
Perayu-perayu menghujahkan (i) bawah per. 74(1) PP, Parlimen diberi kuasa
membuat undang-undang; (ii) bawah per. 121(1), kuasa kehakiman diberi
D
secara eksklusif dalam mahkamah; (iii) dalam kes Muhammad Hassan v. PP
(‘Muhammad Hassan’), Mahkamah Persekutuan mengisytiharkan pemakaian
anggapan milikan untuk menggunakan anggapan pengedaran bawah s. 37
ADB adalah agak keras, bersifat menindas dan dengan itu tidak dibenarkan;
(iv) sebaik sahaja Mahkamah Persekutuan melaksanakan kuasa kehakiman
E atas perkara itu, Parlimen tidak boleh campur tangan dengan pelaksanaannya
dengan meminda ADB untuk mengesahkan apa yang telah diisytiharkan
haram; dan (v) dengan menggubal s. 37A untuk menolak keputusan
Muhammad Hassan, Parlimen telah melaksanakan kuasa kehakiman
mengisytiharkan undang-undang. Alasan kedua bantahan yang dibangkitkan
F perayu-perayu adalah berdasarkan per. 5 dan 8 PP. Perayu-perayu
menghujahkan (i) per. 5(1) termasuk hak mendapatkan perbicaraan adil, yang
merangkumi keadilan prosedural dan substantif; (ii) bagi maksud niat dan
tujuan, s. 37A ADB mempunyai kesan menterbalikkan beban pembuktikan
kepada tertuduh untuk membuktikan ketakbersalahannya; (iii) di mana
G
anggapan berganda diguna pakai, kes Muhammad Hassan memutuskan
bahawa beban atas perayu-perayu untuk menyangkal kedua-dua anggapan
atas imbangan kebarangkalian adalah menindas, agak keras dan tidak adil;
(iv) s. 37A melanggar keperluan keadilan yang telah ditetapkan bawah per.
5 dan 8 PP; (v) hak per. 5(1) adalah mutlak dan tidak boleh terjejas; dan
(vi) Mahkamah Persekutuan dalam Public Prosecutor v. Gan Boon Aun terkhilaf
H
dalam memutuskan bahawa hak mendapatkan perbicaraan adil dan anggapan
ketakbersalahan bawah per. 5 boleh dibenarkan melalui rujukan pada prinsip
kekadaran.

I
790 Current Law Journal [2019] 5 CLJ

Diputuskan (membatalkan sabitan dan hukuman bawah s. 39B ADB; A


menggantikan sabitan masing-masing dengan sabitan milikan bawah
s. 12(1) DDA):
Oleh Richard Malanjum KHN menyampaikan penghakiman mahkamah:
(1) Di permulaan perbicaraan rayuan-rayuan ini, responden
membangkitkan isu bahawa perayu-perayu tidak memperoleh B
kebenaran Mahkamah Persekutuan untuk membantah kesahihan
perlembagaan s. 37A ADB. Dihujahkan bahawa menurut per. 4(4) PP,
perayu sepatutnya memohon kebenaran Mahkamah Persekutuan
untuk membawa bantahan ini. Perkara 4(4) hanya diguna pakai
apabila kesahihan undang-undang dibantah atas alasan ia membuat C
peruntukan berkenaan perkara-perkara yang Parlimen atau Badan
Perundangan Negeri tidak mempunyai kuasa menggubal undang-
undang. Soalan utama berhubung perkara undang-undang yang
dipertikaikan. Kebenaran Mahkamah Persekutuan hanya diperlukan
dalam prosiding-prosiding untuk pengisytiharan bahawa undang- D
undang tidak sah atas alasan spesifik. Dalam prosiding-prosiding
sebegitu, Mahkamah Persekutuan mempunyai bidang kuasa asal
eksklusif untuk menentukan perkara-perkara itu. Dalam rayuan-
rayuan ini, kekompetenan legislatif Parlimen berhubung perkara
s. 37A ADB bukan satu isu. Dasar bantahan perayu adalah dengan
E
menggubal s. 37A yang mengakas keputusan Mahkamah Persekutuan
dalam kes Muhammad Hassan, Parlimen telah merampas kuasa
kehakiman Persekutuan dan mencemari semangat per. 121(1) PP.
Rujukan perayu-perayu pada per. 74(1) hanyalah untuk menarik
perhatian pada perkataan-perkataan ‘Parlimen boleh membuat
F
undang-undang’ untuk menyokong dasar itu. Oleh kerana kesahihan
s. 37A tidak dibantah atas alasan ini berhubungan perkara di mana
Parlimen tidak mempunyai kuasa untuk membuat undang-undang,
bantahan tidak terangkum dalam skop per. 4(1) dan kebenaran tidak
diperlukan daripada mahkamah ini. Oleh itu, bantahan awalan
responden tidak bermerit dan ditolak. G

(2) Pemisahan kuasa antara badan Perundangan, Eksekutif dan badan


Kehakiman adalah ciri-ciri sebuah negara demokratik moden. Oleh
itu, pemisahan kuasa bukan hanya perkara kecekapan pentadbiran.
Terasnya adalah keperluan untuk satu mekanisme sekatan dan
imbangan untuk mengelak risiko penyalahgunaan apabila kuasa H
ditumpukan pada satu pihak. Antara ketiga-tiga cawangan Kerajaan,
‘semua bahagian itu membentuk satu pemeriksaan saling atas satu
sama lain. Ketiga-tiga bahagian, setiap bahagian mengawal selia dan
dikawal selia oleh bahagian-bahagian lain.’ Pemisahan kuasa bertindak
sebagai sekatan terhadap pelaksanaan kuasa Kerajaan, institusi- I
[2019] 5 CLJ Alma Nudo Atenza v. PP & Another Appeal 791

A institusi dibentuk ‘bukan hanya untuk bekerjasama tetapi untuk


bercanggah, sebagai sebahagian daripada takal sekatan dan imbangan’.
Mahkamah ini telah, beberapa kali, mengiktiraf bahawa prinsip
pemisahan kuasa dan kuasa mahkamah biasa untuk menyemak semula
kesahan satu tindakan Negeri, adalah amat penting dan membentuk
B sebahagian bentuk struktur asas PP. Sama ada satu undang-undang
yang digubal berdasarkan perlembagaan sahih adalah untuk
mahkamah menghakimi dan bukan untuk Parlimen memutuskan.
(3) Seksyen 37A tidak bertujuan untuk menolak keputusan Mahkamah
Persekutuan dalam Muhammad Hassan. Kemuktamadan kes itu
C berhubung hak-hak dan liabiliti-liabiliti pihak-pihak tidak terjejas.
Kesan memasukkan s. 37A adalah untuk mengubah secara umumnya
undang-undang di mana keputusan itu didasarkan. Pindaan sebegitu
adalah satu latihan kuasa legislatif yang dibenarkan dan tidak
mencerobohi bidang kuasa kehakiman. Dalam memasukkan s. 37A,
D Parlimen hanya mematuhi pendapat Mahkamah Persekutuan yang
menyatakan anggapan atas anggapan hanya boleh dibenarkan jika ‘atas
pengungkapan dua subseksyen itu, niat Parlimen adalah jelas.’ Sebagai
birai PP dan kedaulatan undang-undang, mahkamah-mahkamah
bertanggungjawab melindungi PP daripada dilemahkan oleh prinsip-
prinsip yang semakin kikis yang terhadapnya PP didasarkan.
E
Mahkamah-mahkamah harus memastikan kuasa-kuasa badan
Perundangan dan Eksekutif disimpan dalam had-had yang diniatkan.
Sesungguhnya, peranan mahkamah adalah untuk secara am mengguna
pakai dan mentafsirkan undang-undang seperti yang dibentangkan oleh
Parlimen. Bukan untuk mahkamah menolak untuk mengguna pakai
F
undang-undang baharu hanya atas alasan mahkamah telah sebelum ini
menyatakan satu pandangan tertentu untuk versi undang-undang tidak
dipinda. Oleh itu, alasan pertama bantahan yang dibangkitkan oleh
perayu-perayu ditolak.
(4) Perkara 5(1) adalah hak asasi di mana hak asasi lain yang disemadikan
G
dalam PP mendapat sokongan. Menafikan seseorang hak bawah
per. 5(1), akibatnya jelas iaitu hak-hak lain bawah PP tidak menjadi
kenyataan atau dihalang. Tetapi, pada masa yang sama, per. 5(1) tidak
sama sekali merangkumi segalanya dan setiap hak yang dilindungi
dalam Bahagian II mempunyai parameter tersendiri. Oleh itu,
H peruntukan-peruntukan PP harus dibaca secara harmoni. ‘Undang-
undang’ seperti ditakrifkan dalam per. 160(2) PP dibaca dengan s. 66
Akta Tafsiran 1948 dan 1967 termasuk common law di England.
‘Undang-undang’ dalam per. 5(1) dan dalam peruntukan-peruntukan
kebebasan asasi dalam PP dengan itu harus selari dengan konsep
I
792 Current Law Journal [2019] 5 CLJ

kedaulatan undang-undang dan bukan pemerintahan undang-undang. A


Satu rukun pusat kedaulatan undang-undang adalah ketertaklukan
sama bagi semua orang di sisi undang-undang. Rakyat seharusnya
diperintah oleh undang-undang dan mampu untuk diberi panduan
olehnya. Oleh itu, undang-undang harus berupaya untuk dipatuhi.
(5) Seksyen 37A ADB dimulakan dengan frasa ‘walaupun undang-undang B
bertulis atau kedaulatan undang-undang.’ Perkataan-perkataan
‘kedaulatan undang-undang’ dalam s. 37A merujuk pada peraturan-
peraturan sampingan tersirat, seperti peraturan-peraturan prosedur
atau keterangan. Ini tidak bertujuan untuk mengecualikan kedaulatan
undang-undang sebagai konsep undang-undang. Jika ditafsirkan C
sebaliknya, ini akan menjadi pemerintahan undang-undang dan tidak
boleh terangkum dalam skop terma ‘undang-undang’ dalam per. 5(1)
PP dan oleh itu tidak mengikut perlembagaan. Prinsip kedaulatan
undang-undang, sebagai satu asas berperlembagaan, tidak boleh
dibatalkan hanya oleh perkataan-perkataan statutori. Sewajarnya, D
per. 5(1) menjamin bahawa seseorang tidak akan dinafikan hak hidup
atau kebebasan peribadi kecuali mengikut undang-undang
menjangkakan satu tindakan Negeri yang adil dari segi prosedur dan
inti pati. Prinsip asas anggapan ketakbersalahan, yang telah lama
diiktiraf dalam common law, termasuk dalam frasa ‘sejajar dengan
E
undang-undang.’ Walau bagaimanapun, anggapan ketakbersalahan
tertakluk pada had-had tersirat. Satu darjah kebolehubahan, oleh itu,
diperlukan untuk mencari keseimbangan antara kepentingan awam
dan hak tertuduh.
(6) Apabila mana-mana tindakan Negeri dicabar kerana melanggar hak F
asasi, seperti hak untuk hidup atau kebebasan peribadi bawah
per. 5(1), per. 8(1) akan serta-merta digunakan dan tindakan itu harus
memenuhi ujian kekadaran. Kekadaran adalah keperluan penting
mana-mana had sah hak yang berakar umbi. Kekadaran meminta
keseimbangan kepentingan berbeza. Dalam proses keseimbangan,
G
pertimbangan-pertimbangan relevan termasuk sifat hak, tujuan hak
dihadkan, takat dan kemujaraban had, dan sama ada keputusan akhir
yang diingini boleh dicapai melalui cara-cara lain yang kurang
menjejaskan hak yang dipersoalkan. Anggapan ketakbersalahan tidak
mutlak. Pengurangan atau had atas tanggungjawab pihak pendakwaan
untuk membuktikan kesalahan tertuduh melampaui keraguan H
munasabah dibatasi dengan berhati-hati melalui rujukan pada
sesetengah bentuk ujian kekadaran. Pemakaian ujian kekadaran dalam
konteks ini cuba untuk mencapai keseimbangan yang sesuai antara
kepentingan-kepentingan tertuduh dan Negeri. Doktrin kekadaran dan
sifat per. 8 membentuk sebahagian common law Malaysia, yang I
[2019] 5 CLJ Alma Nudo Atenza v. PP & Another Appeal 793

A dibangunkan oleh mahkamah kita berdasarkan tafsiran prismatik PP


tanpa rekursa pada kes undang-undang berhubung European
Convention of Human Rights. Oleh itu, penegasan perayu bahawa
per. 5 memberi hak mutlak kepada tertuduh untuk dianggap tidak
bersalah sehingga dibuktikan kesalahannya dan tidak tertakluk pada
B doktrin kekadaran sementara tidak mengendahkan per. 8, tidak
disokong autoriti dan tidak berasas.
(7) Seksyen 37A digubal untuk membenarkan penggunaan dua anggapan
tetapi tiada pindaan dibuat pada kata-kata dalam sub-s. 37(da).
Mahkamah Persekutuan memutuskan dalam kes Muhammad Hassan
C bahawa berdasarkan maksud yang jelas dan terang perkataan statutori
‘deemed possession’ bawah s. 37(d) tidak boleh disamakan dengan
‘found possession’ untuk menggunakan anggapan pengedaran bawah
s. 37(da). Untuk berbuat demikian akan bertentangan dengan maksud
biasa bahasa statutori. Oleh itu, walaupun s. 37A dimasukkan, bacaan
D perkataan-perkataan dalam sub-s. (d) dan (da) tidak membenarkan
pemakaian serentak kedua-dua anggapan tersebut dalam pendakwaan
kesalahan pengedaran dadah.
(8) Untuk menentukan kesan s. 37A, harus dipertimbangkan secara am
sifat anggapan-anggapan. Anggapan sebenar mulai berkuat kuasa
E apabila, atas bukti satu fakta (fakta asas), kewujudan fakta yang lain
(fakta yang dianggap) dianggap tanpa keterangan lanjut. Keterangan-
keterangan boleh dikategorikan pada anggapan undang-undang atau
anggapan fakta. Anggapan undang-undang melibatkan peraturan-
peraturan undang-undang, dan anggapan-anggapan fakta tidak lebih
F daripada contoh-contoh keterangan ikut keadaan. Untuk anggapan
bawah s. 37(d), jagaan dan kawalan seseorang terhadap sesuatu yang
mengandungi dadah berbahaya, yang dibuktikan secara fakta (fakta
asas) adalah relevan pada, tapi tidak muktamad, milikan dan
pengetahuannya berkenaan dadah berbahaya yang tidak perlu
dibuktikan tetapi hanya dianggap (fakta yang dianggap). Untuk
G
anggapan bawah s. 37(da), seseorang yang ‘ditemui’ (yang menandakan
keperluan pertama untuk dapatan afirmatif berdasarkan keterangan
yang dikemukakan) mempunyai milikan atas dadah-dadah melebihi
berat yang ditentukan mempunyai satu kedudukan logik atas inferens
pengedaran. Anggapan-anggapan adalah sebahagian besarnya hal
H inferens yang logikal.
(9) Anggapan-anggapan bawah s. 37 boleh disangkal. Frasa ‘sehingga
boleh dibuktikan sebaliknya’ mengenakan beban perundangan ke atas
tertuduh untuk membuktikan atas imbangan kebarangkalian bahawa
dia tidak mempunyai milikan atau pengetahuan berkenaan dadah
I
(s. 37(d)), atau dia tidak mempunyai milikan setakat had statutori dari
794 Current Law Journal [2019] 5 CLJ

segi berat dadah untuk tujuan pengedaran (s. 37(da)). Berat keterangan A
yang diperlukan untuk menyangkal anggapan bergantung pada keadaan
setiap kes. Perkataan ‘shall’ dalam kedua-dua subseksyen menunjukkan
setiap anggapan adalah bersifat mandatori. Walau bagaimanapun,
perkataan ‘may’ dalam s. 37A mencadangkan bahawa penggunaan
kumulatif anggapan berganda atau berbilang adalah mengikut budi B
bicara. Tetapi hanya kerana ini mengikut budi bicara tidak ipso facto
terlepas daripada satu pemeriksaan rapi berperlembagaan.
(10) Kesan s. 37A atas operasi kedua-dua anggapan adalah (i) sebaik sahaja
pihak pendakwaan membuktikan tertuduh mempunyai jagaan dan
kawalan atas sesuatu yang mengandungi dadah berbahaya, tertuduh C
dianggap mempunyai milikan dan pengetahuan berkenaan dadah
bawah s. 37(d). ‘Deemed possession’ yang dianggap bawah s. 37(d)
kemudiannya dipakai untuk menggunakan anggapan pengedaran
bawah s. 37(da), jika kuantiti dadah yang terlibat melebihi had berat
statutori; (ii) s. 37A oleh itu membenarkan ‘anggapan atas anggapan’; D
dan (iii) oleh itu untuk pertuduhan pengedaran dadah, yang diperlukan
adalah untuk pihak pendakwaan membuktikan satu kes prima facie
untuk membuktikan jagaan dan kawalan oleh pihak tertuduh dan berat
dadah yang terlibat. Beban perundangan kemudiannya beralih pada
tertuduh untuk menyangkal anggapan-anggapan milikan dan
E
pengetahuan (s. 37(d) dan pengedaran (s. 37(da) atas imbangan
kebarangkalian). Oleh itu, s. 37A prima facie melanggar
ketakbersalahan kerana membenarkan tertuduh disabitkan walaupun
keraguan munasabah masih wujud.
(11) Anggapan-anggapan bawah s. 37(d) dan (da) berkaitan tiga elemen F
penting kesalahan pengedaran dadah, iaitu milikan dadah,
pengetahuan mengenai dadah dan pengedaran. Sebaik sahaja inti pati-
inti pati penting kesalahan dianggap, tertuduh mempunyai beban
perundangan untuk menyangkal anggapan-anggapan atas imbangan
kebarangkalian. Ini satu hakisan serius terhadap anggapan
G
ketakbersalahan bawah per. 5(1) PP. Tetapi kesan paling parah, iaitu
agak keras dan bersifat menindas, yang berbangkit daripada pemakaian
‘anggapan atas anggapan’ adakah anggapan elemen milikan bawah
s. 37(d) yang dipakai untuk menggunakan anggapan pengedaran bawah
s. 37(da) tanpa mempertimbangkan elemen milikan bawah s. 37(da)
memerlukan milikan ‘found’ dan bukan milikan ‘deemed’. Frasa H
‘sesiapa yang didapati mempunyai milikan’ melibatkan satu dapatan
afirmatif berdasarkan keterangan yang dikemukakan. Untuk
menggunakan anggapan pengedaran yang didapati bukan atas bukti
milikan tetapi anggapan milikan berdasarkan bukti jagaan dan
I
[2019] 5 CLJ Alma Nudo Atenza v. PP & Another Appeal 795

A kawalan, menyimpang daripada peraturan am bahawa pihak


pendakwaan perlu membuktikan kesalahan tertuduh melampaui
keraguan munasabah.
(12) Berdasarkan faktor-faktor di atas – inti pati-inti pati penting kesalahan,
pengenaan beban perundangan, standard pembuktian yang diperlukan
B untuk menyangkal, dan kesan kumulatif kedua-dua anggapan –
mahkamah ini mengambil kira bahawa s. 37A menyimpang daripada
peraturan am, yang tidak boleh dijustifikasikan dan tidak setimpal
dengan objektif legislatif. Ini jauh daripada jelas bahawa objektif tidak
boleh dicapai melalui cara lain yang kurang menjejaskan hak asasi
C tertuduh bawah per. 5. Berdasarkan keseriusan kesalahan dan
hukuman yang dikenakan, serangan yang tidak dapat diterima ke atas
hak tertuduh bawah per. 5(1) tidak setimpal dengan tujuan mengawal
jenayah, oleh itu gagal memenuhi keperluan kekadaran bawah
per. 8(1). Maka, s. 37A tidak mengikut perlembagaan kerana
D melanggar per. 5(1) dibaca dengan per. 8(1) PP. Seksyen yang
dipertikaikan dengan itu dibatalkan. Oleh kerana tiada bantahan
terhadap penggunaan satu anggapan dalam rayuan-rayuan ini,
penggunaan s. 37(d) oleh hakim-hakim bicara tidak menyebabkan
mana-mana salah laksana keadilan yang memudaratkan perayu-
perayu. Oleh itu, mahkamah ini membatalkan tuduhan dan hukuman
E
kedua-dua perayu bawah s. 39B ADB dan menggantikannya dengan
sabitan milikan bawah s. 12(1) dan dihukum bawah s. 39A(2) ADB.
Case(s) referred to:
Ah Thian v. Government of Malaysia [1976] 1 LNS 3 FC (refd)
Attorney-General of Hong Kong v. Lee Kwong-Kut [1993] AC 951 (refd)
F
Attorney General’s Reference (No 4 of 2002) [2005] 1 All ER 237 (refd)
Badan Peguam Malaysia v. Kerajaan Malaysia [2008] 1 CLJ 521 FC (refd)
Bugdaycay v. Secretary of State for the Home Department [1987] AC 514 (refd)
Cheviti Venkanna Yadav v. State of Telangana [2017] 1 SCC 283 (refd)
Dato’ Menteri Othman Baginda & Anor v. Dato’ Ombi Syed Alwi Syed Idrus [1984] 1
G CLJ 28; [1984] 1 CLJ (Rep) 98 (refd)
DPP v. Mollison (No 2) [2003] UKPC 6 (refd)
Dr Mohd Nasir Hashim v. Menteri Dalam Negeri Malaysia [2007] 1 CLJ 19 CA (refd)
East Union (Malaya) Sdn Bhd v. Government of State of Johore & Government of Malaysia
[1980] 1 LNS 18 FC (refd)
Gerald Fernandez v. Attorney-General, Malaysia [1970] 1 LNS 27 FC (refd)
H Gin Poh Holdings Sdn Bhd v. The Government of the State of Penang & Ors [2018] 4
CLJ 1 FC (refd)
Hinds v. The Queen [1977] AC 195 (refd)
In Re Mohamad Ezam Mohd Nor [2002] 5 CLJ 156 HC (refd)
In the matter of Cauvery Water Disputes Tribunal [1993] Supp 1 SCC 96 (II) (refd)
Indira Gandhi Mutho v. Pengarah Jabatan Agama Islam Perak & Ors And Other Appeals
I [2018] 3 CLJ 145 FC (dist)
796 Current Law Journal [2019] 5 CLJ

Indira Nehru Gandhi v. Shri Raj Narain [1975] 2 SCC 159 (dist) A
J Raz, The Rule of Law and its Virtue (1977) 93 LQR 195 (refd)
Janapada Sabha Chhindwara v. The Central Provinces Syndicate Ltd [1970] 1 SCC 509
(refd)
Lee Kwan Woh v. PP [2009] 5 CLJ 631 FC (refd)
Liyanage v. The Queen [1967] 1 AC 259 (refd)
Maneka Gandhi v. Union of India AIR 1978 SC 59 (refd) B
Matadeen v. Pointu [1998] UKPC 9 (refd)
Medical Council of India v. State of Kerala (Writ Petition (C) No 178 & 231 of 2018)
(refd)
Muhammed Hassan v. PP [1998] 2 CLJ 170 FC (refd)
Ong Ah Chuan v. PP [1980] 1 LNS 181 PC (refd)
Ooi Kean Thong & Anor v. PP [2006] 2 CLJ 701 FC (refd) C
Pengarah Tanah dan Galian, Wilayah Persekutuan v. Sri Lempah Enterprise Sdn Bhd
[1978] 1 LNS 143 FC (refd)
PP v. Datuk Harun Hj Idris & Ors [1976] 1 LNS 180 HC (refd)
PP v. Gan Boon Aun [2017] 4 CLJ 41 FC (refd)
PP v. Pung Chen Choon [1994] 1 LNS 208 SC (refd)
D
PP v. Su Liang Yu [1976] 1 LNS 113 HC (refd)
R v. Johnstone [2003] UKHL 28 (refd)
R v. Kirby; ex p Boilermakers’ Society of Australia [1956] ALR 163 (refd)
R v. Lambert [2001] UKHL 37 (refd)
R v. Oakes [1986] 1 SCR 103 (refd)
R v. Whyte [1988] 51 DLR (4th) 481 (refd) E
R (Anderson) v. Secretary of State for the Home Department [2002] UKHL 46 (refd)
Rethana M Rajasigamoney v. The Government of Malaysia [1984] 1 CLJ 352; [1984]
1 CLJ (Rep) 323 FC (refd)
Semenyih Jaya Sdn Bhd v. Pentadbir Tanah Daerah Hulu Langat & Another Case [2017]
5 CLJ 526 FC (refd)
Shaw v. DPP [1962] AC 220 (refd) F
Sheldrake v. Director of Public Prosecutions; Attorney General’s Reference (No 4 of 2002)
[2005] 1 All ER 237 (refd)
Sivarasa Rasiah v. Badan Peguam Malaysia & Anor [2010] 3 CLJ 507 FC (refd)
S R Bhagwat v. State of Mysore [1995 6 SCC 16 (refd)
ST Sadiq v. State Of Kerala [2015] 4 SCC 400 (dist)
State v. Coetzee [1997] 2 LRC 593 (refd) G
State v. Makwanyane [1995] 1 LRC 269 (refd)
State Government of Negeri Sembilan & Ors v. Muhammad Juzaili Mohd Khamis & Ors
[2015] 8 CLJ 975 FC (not foll)
State of Haryana v. Karnal Coop Farmers’ Society Ltd [1993] 2 SCC 363 (refd)
Syarikat Banita Sdn Bhd v. Government of State of Sabah [1977] 1 LNS 125 FC (refd)
Tan Tek Seng v. Suruhanjaya Perkhidmatan Pendidikan & Anor [1996] 2 CLJ 771 CA H
(refd)
The State v. Khoyratty [2006] UKPC 13 (refd)
Titular Roman Catholic Archbishop of Kuala Lumpur v. Menteri Dalam Negeri & Ors
[2014] 6 CLJ 541 FC (not foll)
Victorian Stevedoring & General Contracting Co Pty Ltd v. Dignan [1932] ALR 22 (refd)
I
Woolmington v. Director of Public Prosecutions [1935] AC 462 (refd)
Yeoh Tat Thong v. Government of Malaysia & Anor [1973] 1 LNS 180 FC (refd)
[2019] 5 CLJ Alma Nudo Atenza v. PP & Another Appeal 797

A Legislation referred to:


Courts of Judicature Act 1964, s. 78(1)
Dangerous Drugs Act 1952, ss. 2, 12(1), 37A, 37(d), (da)(ix), (xvi), 39B
Federal Constitution, arts. 4(1), (3), (4), 5(1), 8(1), 9, 10, 11, 74(1), 75, 121(1),
128(1)(a), 160(2)
Interpretation Acts 1948 and 1967, s. 66
B
Other source(s) referred to:
AV Dicey, An Introduction to the Study of the Law of the Constitution, 10th edn,
London: Macmillan 1959, p 202
Bingham, The Rule of Law, London: Penguin Books, 2011, pp 66-68
Blackstone, Commentaries, vol 1, 1765/1979, p 154
C C Tapper, Cross & Tapper on Evidence, 12th edn., Oxford: OUP, 2013, p 135
C Tapper, Cross & Wilkins Outline of the Law of Evidence, 6th edn, (London:
Butterworths, 1986), p 39
FAR Bennion, Statutory Interpretation: A Code, 3rd edn, London: Butterworths,
1997, p 805
H Barnett, Constitutional and Administrative Law, 2nd edn, London: Cavendish
D Publishing, 1998, p 90
L Thio, A Treatise on Singapore Constitutional Law (Singapore: Academy Publishing,
2012), p 160
(Criminal Appeal No: 05-94-05-2017(B))
For the appellant - Gopal Sri Ram, Srimurugan Alagan, Surjan Singh, R Kengadharan,
E Jamil Mohamed Shafie, Emily Wong, Magita Hari Mogan, Yasmeen Soh, How Li
Nee, Nursyazwani Ilyana Iskandar Dzulkarnain, Hussein Akhtar, Sathiswaranji
Samy; M/s Srimurugan & Co
For the respondent - Nik Suhaimi Nik Sulaiman, Mohd Dusuki Mokhtar, Ku Hayati Ku
Haron & Hamdan Hamzah; DPPs
(Criminal Appeal No: 05-193-08-2017(W))
F
For the appellant - Gopal Sri Ram, A Jeyaseelen, Rajpal Singh, Emily Wong, Magita Hari
Mogan, Yasmeen Soh, How Li Nee; M/s Jeyaseelen & Co
For the respondent - Nik Suhaimi Nik Sulaiman, Mohd Dusuki Mokhtar, Ku Hayati Ku
Haron & Hamdan Hamzah; DPPs
[Editor’s note: For the Court of Appeal judgment, please see Alma Nudo Atenza v. PP
G [2017] 1 LNS 979 (Varied).
For the High Court judgment, please see [2016] 1 LNS 465 (Varied).]
Reported by Suhainah Wahiduddin

JUDGMENT
H
Richard Malanjum CJ:
Introduction
[1] The common and central issue in the present appeals is on the
I
constitutional validity of s. 37A of the Dangerous Drugs Act 1952 (“DDA”),
with reference to arts. 5, 8, and 121 of the Federal Constitution (“FC”).
798 Current Law Journal [2019] 5 CLJ

[2] Each of the appellants in these two appeals was charged before and A
convicted by two different trial judges for drug trafficking under s. 39B of the
DDA. However, since both appeals were premised on one common and
crucial issue, we proceeded to hear them together while conscious of the fact
that, on merits, these two appeals might differ. We therefore heard
submissions on the common issue of these two appeals. B
[3] This is a unanimous judgment of the remaining judges of the court
delivered pursuant to s. 78(1) of the Courts of Judicature Act 1964.
Mr Justice Balia Yusof bin Haji Wahi has since retired on 25 March 2019.
The Salient Facts
C
Criminal Appeal No. 05-94-05-2017(B) (“First Appeal”)
[4] The charge against the appellant in the first appeal (hereinafter “first
appellant” for ease of reference) read as follows:
Bahawa kamu pada 19 Ogos 2014 lebih kurang jam 2.00 pagi di Cawangan D
Pemeriksaan Penumpang 2 (CPP2) Balai Ketibaan Antarabangsa,
Lapangan Terbang Antarabangsa Kuala Lumpur (KLIA), di dalam negeri
Selangor Darul Ehsan telah didapati mengedar dadah berbahaya iaitu
Methamphetamine seberat 2556.4 gram dan dengan itu kamu telah
melakukan suatu kesalahan di bawah seksyen 39B(1)(a) Akta Dadah
Berbahaya 1952 yang boleh dihukum di bawah seksyen 39B(2) Akta yang E
sama.
[5] The first appellant, a national of the Republic of the Philippines,
travelled from Hong Kong to Malaysia by flight on 19 August 2014. Upon
her arrival at KLIA at about 2am, a customs enforcement officer (‘PW3’)
saw the first appellant in the queue and had her bag (‘P7’) scanned. Upon F
scanning, PW3 saw a suspicious image inside the bag. He requested a
customs officer (‘PW6’) to examine the bag further.
[6] On physical examination of the contents of the bag, PW6 discovered
that it contained several new handbags. He then removed one of the handbags
for scanning. PW3 saw a suspicious image inside the handbag. He requested G
PW6 to place the handbag back into the bag. The first appellant and the bag
were then brought to an examination room where they were handed over to
an investigating officer (‘PW7’).
[7] Instructed by PW7, PW6 conducted a search of the bag in the presence
H
of the first appellant. The bag was found to contain clothings, shoes and nine
packages of handbags wrapped in clear plastic. Each handbag was found to
contain four packages, wrapped with yellow coloured tape and concealed
inside the inner back cover of each of the handbags. A total of 36 packages
were recovered from the nine handbags. Each package contained crystalline
substance. I
[2019] 5 CLJ Alma Nudo Atenza v. PP & Another Appeal 799

A [8] Using a test kit, PW6 found that the substance in each package tested
positive for methamphetamine. The substances were sent to the Chemistry
Department for analysis and were confirmed to contain in total 2556.4g of
methamphetamine.
Criminal Appeal No. 05-193-08-2017 (W) (“Second Appeal”)
B
[9] The charge against the appellant in the second appeal (hereinafter
“second appellant” for ease of reference) was as follows:
Bahawa kamu pada 1 Julai 2014 jam lebih kurang 8.30 malam di bilik
nombor 919, Arena Star Luxury Hotel, Jalan Hang Lekiu, di dalam
C Wilayah Persekutuan Kuala Lumpur telah didapati mengedar dadah
merbahaya iaitu Cocaine seberat 693.4g dan dengan itu telah melakukan
kesalahan dibawah Seksyen 39B(1)(a) Akta Dadah Berbahaya 1952 yang
boleh dihukum di bawah Seksyen 39B(2) Akta yang sama.
[10] The second appellant, a Thai national, travelled by flight from
D
Bangkok to Bahrain on 26 June 2014, and thereafter from Bahrain to Kuala
Lumpur via Abu Dhabi on 29 June 2014 on Etihad Airways. At the Bahrain
airport, the second appellant checked in a bag (exh. P34) for her flight to
Kuala Lumpur. On 30 June 2014, upon her arrival at Kuala Lumpur
International Airport (KLIA), the second appellant lodged a complaint
regarding the loss of the bag to the airport authorities. The second appellant
E
gave her personal information and the address where she would be staying,
which was Room 919 in Hotel Arena Star Luxury, Kuala Lumpur.
[11] On 1 July 2014, the bag arrived at KLIA and was handed over to the
Lost and Found Section of Malaysia Airlines System (‘MAS’). Etihad
F
Airways had requested MAS to arrange the delivery of the bag to the second
appellant. The bag had been labelled with a ‘rush’ tag (‘P28’), indicating the
second appellant’s name and the tag number.
[12] At about 4pm on the same day, an employee of bags handling
company (‘SP8’) brought the bag from the lost and found section to the
G arrival hall for scanning. During the scanning process, a customs officer
(‘SP4’) noticed a suspicious green image on the inside walls of the bag. He
contacted the KLIA customs enforcement team. SP10 led the enforcement
team to the scanning machine and received the bag from SP4.
[13] Having examined the bag, SP10 noticed the second appellant’s name
H on the tag and noted that the bag was in good condition but unlocked. SP10
requested SP8 to deliver the bag to the second appellant as planned. SP10
and some other customs officers followed SP8 to Hotel Arena Star Luxury
in a different vehicle.

I
800 Current Law Journal [2019] 5 CLJ

[14] At the hotel, SP10 brought the bag to the hotel counter and met a hotel A
staff SP6, who telephoned the second appellant in Room 919 to collect her
bag. The second appellant came down to the hotel lobby, signed the receipt,
and took the bag from SP8. The second appellant then pulled the bag into
the elevator, while being followed by SP10 and three other officers. In the
elevator, SP10 saw the second appellant tore off the tag from the bag. B
[15] When the elevator reached the ninth floor, the second appellant exited
and went to Room 919. As she was about to open the room door, SP10
introduced himself. SP10 had also obtained the bag tag which was earlier on
torn off by the second appellant. The second appellant’s reaction was one of
shock. C

[16] In Room 919, SP10 instructed the second appellant to open the bag
for examination. After the second appellant unzipped the bag and removed
the items therein, SP10 found a black layer on the inside wall of the bag.
SP10 requested the second appellant to cut the layer with a knife, and found
white powder inside the black layer. D

[17] The second appellant and the bag were taken to the KLIA customs
enforcement office where SP10 made further inspections of the bag and
discovered a black frame. Around the black frame were found two packages
containing white powder. The white powder was sent to the Chemistry
E
Department for analysis. After analysis, the white powder was confirmed to
contain 693.4g of cocaine.
Decisions Of The High Court
The First Appeal
F
[18] The learned trial judge in respect of this first appeal ruled that for the
element of possession, the presumption under sub-s. 37(d) of the DDA could
be invoked against the first appellant. The learned trial judge found that the
bag was under the custody and control of the first appellant. Such finding was
premised on the evidence that the tag was attached to the bag and the first
G
appellant was caught red-handed carrying the bag.
[19] The learned trial judge also found that there was evidence to indicate
the knowledge of first appellant. Such finding was based on how the drugs
were carefully and cunningly concealed in the inner layers of the handbags,
packed as if they were new and placed together with other items similarly H
packed. The learned trial judge therefore inferred an intention to avoid
detection and thereby knowledge. Indeed the learned trial judge concluded
that the only logical finding would be that the first appellant had knowledge
of the drugs she was carrying in the bag.
I
[2019] 5 CLJ Alma Nudo Atenza v. PP & Another Appeal 801

A [20] On the issue of trafficking, the learned trial judge ruled that in view
of s. 37A the prosecution was allowed to invoke another presumption under
sub-s. 37(da)(xvi) as the weight of the methamphetamine exceeded 50g. The
trial judge found that the prosecution had proven the following overt acts:
(i) that the first appellant was conscious in the carrying or transporting of
B the drugs from Hong Kong to Malaysia by flight; and
(ii) that the concealment of the drugs was solely for the purpose of evading
detection.
[21] The learned trial judge therefore found a prima facie case made against
C the first appellant.
[22] In her defence, the first appellant said that while on holiday in
Thailand with her friend Jackelyn, she was offered an assignment from
Jackelyn’s boyfriend, Kevin, to carry diamonds from Hong Kong to
Malaysia. It was the first appellant’s account that the next day she flew to
D Hong Kong alone. On arrival in Hong Kong, she was picked up by one Mike
who on the following day brought her to the Hong Kong airport and checked
in the bag for her.
[23] The learned trial judge did not accept the defence of innocent carrier
advanced by the first appellant. The learned trial judge reasoned that no one
E
would carry diamonds of colossal value in an unlocked checked-in bag. They
could have been stolen while in transit. It was also inferred that from the
conduct of the first appellant, the transaction was planned and well-executed
based on the frantic and fast-paced action taken. Meanwhile, the account
given by the first appellant in court was also ruled to be an afterthought in
F order to dissociate herself from the knowledge of the drugs.
[24] The learned trial judge also held that there were circumstances which
could have aroused the suspicion of the first appellant on what she was
carrying in the bag. Yet, she just ignored those facts indifferent to what she
was carrying and simply shut her eyes on the obvious. Applying therefore
G
the principle of wilful blindness, the first appellant was taken to know that
she was carrying drugs. Hence, the first appellant was convicted as charged
and sentenced to death.
The Second Appeal
H [25] The High Court observed that s. 37A of the DDA would allow the use
of double presumptions, namely, the presumptions under sub-ss. 37(d) and
(da) could be used together to prove “possession and knowledge” and
thereafter to prove “trafficking”.

I
802 Current Law Journal [2019] 5 CLJ

[26] In respect of the presumption under sub-s. 37(d), the learned trial A
judge noted that the prosecution needed only to prove that the second
appellant had the custody and control over the bag in order for the second
appellant to be presumed to have possession and knowledge of the dangerous
drug unless proven otherwise. The learned trial judge found custody and
control on the following facts: B
(i) that at the time of arrest, the second appellant was holding the bag;
(ii) that the second appellant removed the bag tag while still in the elevator;
(iii) that the second appellant’s name was shown on the bag tag and the
passenger information document; C

(iv) that the second appellant checked in the bag herself at the Bahrain
airport;
(v) that the second appellant made a complaint at KLIA after failing to
locate the bag, and provided her hotel details for the bag to be delivered D
to her immediately upon arrival;
(vi) that the second appellant received the bag at the hotel lobby and brought
it to the room; and
(vii) that the contents of the bag (other than the dangerous drugs) were the
E
second appellant’s personal effects, such as clothings.
[27] The learned trial judge took into account the fact that the bag was
reported missing and the possibility of having been tampered with since the
bag was unlocked. However, based on the evidence as a whole, it was found
that the fact that the bag was not with the second appellant for a day did not F
negate the custody and control on her part. It was highlighted that the drugs
were not easily found when the bag was opened. On the contrary, the drugs
were hidden in a secret compartment in the bag, namely, within the black
frame which was only found when the side of the bag was cut with a knife.
The learned trial judge considered that it was not possible within a short time
G
for any other persons to have prepared such a frame to fit the size of the bag
and for two packages to fit the size of the frame.
[28] Since the elements of custody and control were proven, it was ruled
that sub-s. 37(d) applied and the second appellant was presumed to have
possession and knowledge of the drugs. Further, since the weight of the H
cocaine exceeded the statutory stipulated weight, it was then ruled that sub-
s. 37(da)(ix) also applied. As such, the second appellant was presumed to be
trafficking the drugs.

I
[2019] 5 CLJ Alma Nudo Atenza v. PP & Another Appeal 803

A [29] Having found that a prima facie case had been established by the
prosecution, the learned trial judge called for the first appellant to enter
defence. The basis of the second appellant’s defence case was that she had
no knowledge of the drugs in the bag. The learned trial judge however
pointed out the inconsistencies in the second appellant’s defence case,
B including:
(i) that it was the second appellant’s case that she went to Bahrain for
holiday yet it was inconsistent with her testimony during cross-
examination that she went there to find work;
(ii) that the second appellant could not recall the hotel or the name of the
C
beach she purportedly visited in Bahrain;
(iii) that the second appellant had stopped working as a bartender, where she
had previously earned a monthly salary of RM700. It was difficult to
accept that the second appellant, who has a six-year old child, could
D afford the high cost for the alleged holiday; and
(iv) that the second appellant’s account that the money for her holiday in
Bahrain was given by a friend, Som, from her previous workplace, was
doubtful. Som was not called to give evidence.
[30] The learned trial judge rejected the second appellant’s defence as a
E
bare denial and held that the second appellant had failed to adduce evidence
to rebut the presumptions under sub-ss. 37(d) and (da) of the DDA.
Accordingly, the learned trial judge found the second appellant guilty as
charged and sentenced her to death.

F Decision Of The Court Of Appeal


[31] Aggrieved, both the appellants appealed respectively to the Court of
Appeal against the decisions handed to them by the respective learned trial
judges.
The First Appeal
G
[32] The first appellant appealed on three grounds, namely, on the
admissibility of witness statements, the constitutionality on the use of double
presumptions and the defence of innocent carrier.
[33] In respect of admissibility of witness statements, the Court of Appeal
H held that there was no statutory requirement for written consent to be given
in order to admit written statements from the prosecution witnesses. More
so, when counsel for the first appellant did not object to the use of the written
statements during the trial. No miscarriage of justice or prejudice to the first
appellant was found to have been caused.
I
804 Current Law Journal [2019] 5 CLJ

[34] On the issue of double presumptions, the Court of Appeal noted that A
it was not in dispute that the amending Act inserting s. 37A into the DDA
was a valid Act enacted by Parliament. Further, it was considered that
despite the invocation of the presumptions, the onus of proving the case
beyond reasonable doubt still rests on the prosecution. At any rate before a
presumption can be invoked, the prosecution must adduce positive evidence B
of the relevant fact or facts. As such, the rights of the defence are maintained
since the opportunity to rebut the presumption is not taken away. Hence, the
Court of Appeal held that the use of double presumptions was not
unconstitutional and did not violate the presumption of innocence.
[35] On the defence of innocent carrier, the Court of Appeal agreed with C
the finding and conclusion of the learned trial judge. It was held that it was
not enough for the first appellant to merely assert the absence of knowledge.
If and when the circumstances arouse suspicion, the Court of Appeal opined
that it was incumbent upon the first appellant to make the necessary
inquiries. Accordingly, the appeal of the first appellant was dismissed. D
The Second Appeal
[36] The second appellant appealed on the ground that the learned trial
judge had erred in law and fact in finding custody and control.
[37] However, the Court of Appeal held that while no drugs might have E
been detected when the bag was checked in at Bahrain airport, it did not
mean that no drugs were present in the bag at that time. The Court of Appeal
noted that there were many such instances of such happening. But it is not
for the court to answer such question as to how the drugs escaped detection
at the airport of origin. F
[38] On the possibility of tampering, the Court of Appeal agreed with the
finding of the learned trial judge that considering the manner in which the
drugs were concealed inside the bag, it would not have been possible for
others to have placed the drugs in the bag in that manner within the time
period. There was also no evidence found to indicate others including any G
potential enemy, motivated to harm the second appellant by planting the
drugs in the bag. Anyway, the Court of Appeal considered that a person with
such a motive would not have gone to such extent of modifying the bag to
conceal the drugs. Such person or enemy would have placed the drugs in a
conspicuous place. H
[39] The Court of Appeal also observed that as the drugs were well
concealed, leaving the bag unlocked was just an excuse to say that someone
could have placed the drugs inside the bag in the event of the second
appellant being caught. Further, since the second appellant had checked the
bag and confirmed that it was in good condition upon receiving it at the hotel I
lobby, the Court of Appeal ruled out tampering as an issue.
[2019] 5 CLJ Alma Nudo Atenza v. PP & Another Appeal 805

A [40] The Court of Appeal also agreed with the learned trial judge on the
lack of credibility to the story that the second appellant travelled to Bahrain
for holiday using funds supplied by Som. Indeed, the Court of Appeal found
the defence of second appellant was a bare denial. It was incapable of casting
a reasonable doubt in the prosecution’s case or rebutting the presumption of
B knowledge on the balance of probabilities. The appeal was therefore
dismissed.
Decision Of This Court
[41] We are very conscious that there are several grounds of appeal
submitted for both these appeals. However, before us, learned counsel for
C
both the appellants focused his submissions solely on the constitutionality of
s. 37A of the DDA. The section appears to allow the use of double
presumptions to find possession as well as trafficking for a charge under
s. 39B of the DDA.

D [42] Thus, in this judgment, we will therefore mainly deal with the
impugned section. In the event we find there is no merit on the constitutionality
challenge, we will then, if necessary, proceed with the other grounds submitted
before making our ultimate decisions on the respective appeals.
History Of s. 37A Of The DDA
E
[43] Section 37 of the DDA lists out a number of presumptions. The two
presumptions that were invoked in the present appeals are in sub-ss. (d) and
(da), which are reproduced below for ease of reference:
Presumptions
F 37. In all proceedings under this Act or any regulation made thereunder:

(d) any person who is found to have had in his custody or under his
control anything whatsoever containing any dangerous drug shall,
until the contrary is proved, be deemed to have been in possession
G of such drug and shall, until the contrary is proved, be deemed to
have known the nature of such drug; ...

(da) any person who is found in possession of:
H …
(ix) 40grammes or more in weight of cocaine;

(xvi) 50 grammes or more in weight of Methamphetamine;
I otherwise than in accordance with the authority of this Act or any other
written law, shall be presumed, until the contrary is proved, to be
trafficking in the said drug; …
806 Current Law Journal [2019] 5 CLJ

[44] Prior to the insertion of s. 37A, in the case of Muhammed bin Hassan A
v. PP [1998] 2 CLJ 170; [1998] 2 MLJ 273, the accused was convicted for
drug trafficking under s. 39B of the DDA. The trial judge found that the
accused had failed to rebut the statutory presumptions in sub-ss. 37(d) and
(da) of the DDA on a balance of probabilities.
[45] The Federal Court drew attention to the distinction between the words B
“deemed” in sub-s. 37(d) and “found” in sub-s. 37(da). The former arises by
operation of law without necessity to prove how a particular state of affairs
is arrived at, whereas the latter connotes a finding made by a court after trial.
It was held that, in order to invoke the presumption of trafficking under
s. 37(da), the court must make an express affirmative finding that the accused C
was “in possession” of the drug based on evidence. Based on the clear and
unequivocal wording of the two subsections, the presumption of possession
under sub-s. 37(d) cannot be used to invoke the presumption of trafficking
under sub-s. 37(da). His Lordship Chong Siew Fai (Chief Judge Sabah and
Sarawak) said this at p. 190 (CLJ); p. 289 (MLJ): D
In view of the above differences, it would be unduly harsh and oppressive
to construe the automatic application of presumption upon presumption
as contended by the learned deputy public prosecutor – a construction
that ought to be adopted only if, upon the wordings of the two
subsections, such an intention of the Parliament is clear, which, in our
E
opinion, is not.
[46] The Federal Court also went on to express the view that the use of
presumption upon presumption would be harsh and oppressive. The court
said this at p. 194 (CLJ); p. 291 (MLJ):
In our view, on the wording of s. 37(da) as it stands, to read the F
presumption of possession (ie possession as understood in criminal law,
with knowledge) provided in s. 37(d) into s. 37 (da) so as to invoke against
an accused a further presumption of trafficking (ie presumption upon
presumption) would not only be ascribing to the phrase ‘found in
possession’ in s. 37(da) a meaning wider than it ordinarily bears but would
also be against the established principles of construction of penal statutes G
and unduly harsh and oppressive against the accused.
[47] Following the decision in Muhammed bin Hassan (supra), Parliament
tabled the Dangerous Drugs (Amendment) Act 2014, which introduced a
new s. 37A without any amendment to any of the wordings in the
H
presumption provisions. The legislative purpose in enacting s. 37A is to
permit the presumption in sub-s. 37(d) to be applied together with the
presumption in sub-s. 37(da) against an accused. It was explained at the
second reading of the Bill in the Dewan Rakyat (House of Representatives)
(per the Hansard of 4 December 2013) in this way:
I
[2019] 5 CLJ Alma Nudo Atenza v. PP & Another Appeal 807

A Sebelum ini pihak pendakwaan dengan jayanya menggunakan kedua-dua


anggapan ini bagi membuktikan kes pengedaran di bawah seksyen 39B
Akta 234 yang jika sabit kesalahan membawa hukuman gantung
mandatori. Walau bagaimanapun sejak keputusan kes Mahkamah
Persekutuan iaitu Pendakwa Raya v. Mohamad Hassan [1998] 2 CLJ 170,
pendakwaan tidak lagi boleh menggunakan kedua-dua anggapan ini
B bersekali. Ini telah menyebabkan kegagalan pihak pendakwaan
membuktikan pengedaran seperti mana yang ditakrifkan di bawah seksyen
2 Akta 234. Oleh yang demikian bagi mengatasi masalah ini, maka
Kementerian Kesihatan mencadangkan peruntukan baru ini dimasukkan
ke dalam Akta 234.
C Tuan Yang Di-Pertua, cadangan peruntukan menomborkan semula
seksyen 37A sebagai seksyen 37B dan memasukkan seksyen 37A yang
baru adalah bertujuan untuk memperjelaskan pemakaian seksyen 37(d)
dan 37(da) Akta Dadah Berbahaya 1992. Pindaan ini diperlukan ekoran
daripada beberapa keputusan mahkamah yang diputuskan termasuk
keputusan Mahkamah Persekutuan di dalam kes Mohamad Hassan v.
D Pendakwa Raya [1998] 2 CLJ 170.
[48] The purpose of the amendment was therefore obvious, namely, to
overcome the impact of the decision in Muhammed bin Hassan (supra). The
amendment Act was duly passed and the newly inserted s. 37A came into
force on 15 February 2014, before the dates on which the appellants in these
E appeals were charged. Section 37A reads:
Application of presumptions
37A. Notwithstanding anything under any written law or rule of law, a
presumption may be applied under this Part in addition to or in
conjunction with any other presumption provided under this Part or
F
any other written law.
[49] The appellants now seek to challenge the constitutionality of s. 37A
on two broad grounds:
(i) that it contravenes the principle of separation of powers in the FC; and
G
(ii) that it violates arts. 5 and 8 of the FC.
[50] But before we deal with these two grounds in turn, we propose to first
consider the preliminary objection raised by the respondent.
Preliminary Objection
H
The Submissions Of Parties
[51] At the commencement of the hearing of these appeals, the learned
Deputy Public Prosecutor for the respondent raised the issue that the
appellants had not obtained leave from the Federal Court to challenge the
I constitutional validity of s. 37A of the DDA. It was pointed out that the
808 Current Law Journal [2019] 5 CLJ

validity of the section was challenged on the ground that Parliament did not A
have power to enact it under art. 74(1) of the FC. It was submitted that
pursuant to art. 4(4) of the FC the appellants ought to have sought leave from
the Federal Court to mount the present challenge.
[52] In response, learned counsel for the appellants submitted that the
appellants were not challenging the legislative competence of Parliament to B
enact s. 37A. The crux of the appellants’ argument was that, reading
art. 121(1) together with art. 74(1), Parliament was empowered to make law
and not to declare law. It was the appellants’ case that the enactment of
s. 37A was an impermissible act of declaring law. As such, it was contended
that the present challenge did not fall within art. 4(4) and that leave was not C
required.
Scope Of art. 4(4) Of The FC
[53] Article 4(3) of the FC reads as follows:
The validity of any law made by Parliament or the Legislature of any State D
shall not be questioned on the ground that it makes provision with respect to any
matter with respect to which Parliament or, as the case may be, the Legislature of
the State has no power to make laws, except in proceedings for a declaration
that the law is invalid on that ground or:
(a) if the law was made by Parliament, in proceedings between the E
Federation and one or more States;
(b) if the law was made by the Legislature of a State, in proceedings
between the Federation and that State. (emphasis added)
[54] Article 4(4) which relates to the ground mentioned in art. 4(3)
provides that: F

Proceedings for a declaration that a law is invalid on the ground mentioned in Clause
(3) (not being proceedings falling within paragraph (a) or (b) of the Clause) shall
not be commenced without the leave of a judge of the Federal Court; and the
Federation shall be entitled to be a party to any such proceedings, and
so shall any State that would or might be a party to proceedings brought G
for the same purpose under paragraph (a) or (b) of the Clause.
(emphasis added)
[55] Thus, art. 4(4) applies only where the validity of a law is challenged
on the ground that it makes provision with respect to a matter on which
Parliament or the State Legislature has no power to make laws. The central H
question relates to the subject matter of the impugned law. In Gin Poh
Holdings Sdn Bhd v. The Government of the State of Penang & Ors [2018] 4 CLJ
1; [2018] 3 MLJ 417 at para. [32]), this court has clarified that the ground
of challenge referred to in arts. 4(3) and 4(4) comprises the following
situations: I
[2019] 5 CLJ Alma Nudo Atenza v. PP & Another Appeal 809

A … an impugned law deals with a matter with respect to which the relevant
legislative body has no power to make law if:
(a) Parliament made law on a matter not within the Federal List;
(b) the State Legislature made law on a matter not within the State
List;
B
(c) Parliament made law on a matter within the State List pursuant to
art 76, but failed to comply with the requirements in the said Article;
or
(d) the State Legislature made law on a matter within the Federal List
pursuant to art 76A(1), but failed to comply with the requirements
C
in the said Article …
[56] Leave from the Federal Court is only required in proceedings for a
declaration that a law is invalid on that specific ground. In such proceedings,
the Federal Court has exclusive original jurisdiction to determine the matter.
D
(See: art. 128(1)(a)).
[57] There are of course other grounds on which the validity of a law may
be challenged. For instance, a law may be invalid because it is inconsistent
with certain provisions in the FC (art. 4(1)), or a State law may be invalid
because it is inconsistent with a Federal law (art. 75). The court’s power to
E declare a law invalid on any of these other grounds “is not subject to any
restrictions, and may be exercised by any court in the land and in any
proceeding whether it be started by the Government or by an individual”.
(See: Ah Thian v. Government of Malaysia [1976] 1 LNS 3; [1976] 2 MLJ 112
at p. 113).
F [58] A broader reading of art. 4(4), however, was adopted in Titular Roman
Catholic Archbishop of Kuala Lumpur v. Menteri Dalam Negeri [2014] 6 CLJ
541; [2014] 4 MLJ 765. In that case, the validity of provisions in various
State Enactments seeking to control and restrict the propagation of non-
Islamic religious doctrines and beliefs among Muslims was challenged in the
G High Court on the ground that they contravened art. 11 of the FC. The
Federal Court held that such a challenge fell within the scope of art. 4(3) and
(4) of the FC and ought not to have been entertained by the High Court.
[59] The decision in Titular Roman Catholic Archbishop of Kuala Lumpur
(supra) was followed in State Government of Negeri Sembilan & Ors v.
H Muhammad Juzaili Mohd Khamis & Ors [2015] 8 CLJ 975; [2015] 6 MLJ 736,
where the validity of a State Enactment was challenged on the ground that
it offended the fundamental liberties in arts. 5, 8, 9 and 10 of the FC.
Similarly, the Federal Court held that the challenge could only be made via
the specific procedure provided for under art. 4(3) and (4) of the FC.
I
810 Current Law Journal [2019] 5 CLJ

[60] These two cases suggest that a challenge to the constitutionality or A


validity of a law on any ground comes within the ambit of art. 4(3) and (4).
With respect, we are of the view that the wide interpretation adopted is
contrary to the clear wordings of the aforesaid articles and is not supported
by any consistent line of authorities. (See: Ah Thian (supra), Gerald Fernandez
v. Attorney-General, Malaysia [1970] 1 LNS 27; [1970] 1 MLJ 262, Yeoh Tat B
Thong v. Government of Malaysia & Anor [1973] 1 LNS 180; [1973] 2 MLJ
86, Syarikat Banita Sdn Bhd v. Government of State of Sabah [1977] 1 LNS 125;
[1977] 2 MLJ 217, Rethana v. Government of Malaysia [1984] 1 CLJ 352;
[1984] 1 CLJ (Rep) 323; [1984] 2 MLJ 52, East Union (Malaya) Sdn Bhd v.
Government of State of Johore & Government of Malaysia [1980] 1 LNS 18; C
[1980] 2 MLJ 143). We are therefore not inclined to follow these two cases.
In our view, they were decided per incuriam. Indeed, the anomaly in these
two cases appears to have been acknowledged in Gin Poh Holdings (supra)
when this court said this at para. [33]:
A different construction of the scope of arts. 4(4) and 128(1)(a) appears D
to have been adopted in a handful of cases. The ground of challenge that
a law relates to ‘matters with respect to which the legislative body has no
power to make laws’ was given a wider interpretation, extending to
challenges that an Act contravenes the fundamental liberties provisions in
the Federal Constitution and that a State Enactment is inconsistent with
Federal law. We observe that the cases in favour of the wider E
interpretation do not offer a clear juridical foundation for the alternative
construction, and are not altogether reconcilable with the dominant
position settled by the line of authorities discussed earlier.
[61] In the present appeals, as readily conceded by learned counsel for the
appellants, the legislative competence of Parliament in respect of the subject F
matter of s. 37A of the DDA is not in issue. The basis of the appellants’
challenge is that by enacting s. 37A which reverses the decision of the
Federal Court in Muhammad bin Hassan (supra), Parliament had usurped the
judicial power of the Federation and fallen foul of art. 121(1) of the FC. The
appellants’ reference to art. 74(1) was merely to draw attention to the words
G
“Parliament may make law” in support of that basis. Since the validity of
s. 37A is not challenged on the ground that it relates to a matter on which
Parliament has no power to make laws, the challenge does not fall within the
scope of art. 4(4) and leave is not required from this court.
[62] Hence, we find the preliminary objection by the respondent has no H
merit and we dismiss it accordingly.

I
[2019] 5 CLJ Alma Nudo Atenza v. PP & Another Appeal 811

A Challenge Based On Separation Of Powers


The Submissions Of Parties
[63] The appellants’ main ground for challenging the validity of s. 37A is
based on the principle of separation of powers. The submissions for the
B appellants on this point may be summarised as follows:
(a) under art. 74(1) of the FC, Parliament is empowered only to make laws;
(b) under art. 121(1), judicial power is vested exclusively in the courts;
(c) in Muhammed bin Hassan’s case (supra) the Federal Court declared that
C using the presumption of possession to invoke the presumption of
trafficking under s. 37 of the DDA was harsh, oppressive and thus
impermissible;
(d) that once the Federal Court had exercised judicial power on the matter,
Parliament could not interfere with the exercise by amending the DDA
D to legalise what had been declared illegal; and
(e) that by enacting s. 37A to overrule the decision of Muhammed bin Hassan
(supra), Parliament had exercised the judicial power of declaring law.
[64] In response, the respondent submitted:
E
(a) that s. 37A was validly enacted by Parliament in accordance with its
legislative powers under art. 74(1) of the FC read with items 3 and 4 in
the Federal List;
(b) that in Muhammad bin Hassan (supra), the Federal Court held that sub-
ss. 37(d) and (da) of the DDA should only be construed to permit the
F
automatic application of a presumption with another presumption if the
intention of Parliament was clear from the wordings of the statute;
(c) that the purpose of enacting s. 37A was in fact to bring the DDA in line
with the decision in Muhammad bin Hassan (supra), so as to allow the
G application of double presumptions;
(d) that s. 37A is not mandatory in nature but gives the court a discretion
to apply any presumption in addition to or in conjunction with any other
presumptions; and
(e) that s. 37A does not encroach upon the judicial power of the courts.
H
Separation Of Powers In The FC
[65] The ground of challenge raised calls for a proper understanding of the
principle of separation of powers in our FC and the respective roles of
Parliament and the courts.
I
812 Current Law Journal [2019] 5 CLJ

[66] It is well-established that “a constitution must be interpreted in light A


of its historical and philosophical context, as well as its fundamental
underlying principles”. (See: Indira Gandhi Mutho v. Pengarah Jabatan Agama
Islam Perak & Ors And Other Appeals [2018] 3 CLJ 145; [2018] 1 MLJ 545 at
para. [29]). It is not to be interpreted in a vacuum without regard to the
thinking in other countries sharing similar values. (See: The State v. Khoyratty B
[2006] UKPC 13 at para. [29]). The importance of the underlying values of
a constitution was noted by the Judicial Committee of the Privy Council in
Matadeen v. Pointu [1998] UKPC 9 with these words:
… constitutions are not construed like commercial documents. This is
because every utterance must be construed in its proper context, taking C
into account the historical background and the purpose for which the
utterance was made. The context and purpose of a commercial contract
is very different from that of a constitution. The background of a
constitution is an attempt, at a particular moment in history, to lay down
an enduring scheme of government in accordance with certain moral and
political values. Interpretation must take these purposes into account. D

[67] It should also be duly considered that constitutions based on the


Westminster model are founded on the underlying principle of separation of
powers with which the drafters are undoubtedly familiar. Thus, even on an
independent reading of the FC, unaided by any such knowledge, the
provisions therein cannot but suggest the intention to confine the exercise of E
legislative, executive and judicial power with the respective branches of
Government. (See: Victorian Stevedoring & General Contracting Co Pty Ltd
v. Dignan [1932] ALR 22). The separation of powers between the three
branches of Government is a logical inference from the arrangement of the
FC itself, the words in which the powers are vested and the careful and F
elaborate provisions defining the repositories of the respective powers. As
such “this cannot all be treated as meaningless and of no legal consequence”.
(See: R v. Kirby; ex p Boilermakers’ Society of Australia [1956] ALR 163).
[68] Hence, while the FC does not expressly delineate the separation of
powers, the principle is taken for granted as a constitutional fundamental. G
The absence of express words in the FC prohibiting the exercise of a
particular power by a different branch of Government does not by any means
imply that it is permitted. Lord Diplock in Hinds v. The Queen [1977] AC
195 articulated it well when he said this at p. 212:
H
It is taken for granted that the basic principle of separation of powers will
apply to the exercise of their respective functions by these three organs
of government. Thus the constitution does not normally contain any
express prohibition upon the exercise of legislative powers by the
executive or of judicial powers by either the executive or the legislature.
As respects the judicature, particularly if it is intended that the previously I
[2019] 5 CLJ Alma Nudo Atenza v. PP & Another Appeal 813

A existing courts shall continue to function, the constitution itself may even
omit any express provision conferring judicial power upon the judicature.
Nevertheless it is well established as a rule of construction applicable to constitutional
instruments under which this governmental structure is adopted that the absence of
express words to that effect does not prevent the legislative, the executive and the
judicial powers of the new state being exercisable exclusively by the legislature, by the
B executive and by the judicature respectively. (emphasis added)
(See also: Liyanage v. The Queen [1967] 1 AC 259 at p. 287).
[69] The separation of powers between the Legislature, the Executive, and
the Judiciary is a hallmark of a modern democratic State. (See: The State v.
C Khoyratty (supra) at para. [29]; DPP v. Mollison (No 2) [2003] UKPC 6 at para.
[13]; R (Anderson) v. Secretary of State for the Home Department [2002] UKHL
46 at para. [50]). Lord Steyn in The State v. Khoyratty (supra) at para. [12]
succinctly said this:
The idea of a democracy involves a number of different concepts. The first
D is that the people must decide who should govern them. Secondly, there
is the principle that fundamental rights should be protected by an impartial
and independent judiciary. Thirdly, in order to achieve a reconciliation
between the inevitable tensions between these ideas, a separation of
powers between the legislature, the executive, and the judiciary is
necessary.
E
[70] Thus, the separation of powers is not just a matter of administrative
efficiency. At its core is the need for a check and balance mechanism to avoid
the risk of abuse when power is concentrated in the same hands. (See: James
Madison, “The Structure of the Government Must Furnish the Proper Checks and
Balances Between the Different Departments”, The Federalist Papers No. 51
F
(1788)).
[71] Between the three branches of Government, “all the parts of it form
a mutual check upon each other. The three parts, each part regulates and is
regulated by the rest”. (See: Blackstone, Commentaries (Vol. 1), 1765/1979 at
p. 154). The separation of powers provides a brake to the exercise of
G
Government power; the institutions are designed “not only to co-operate but
to conflict, as part of the pulley of checks and balances”. (See: L Thio, A
Treatise on Singapore Constitutional Law (Singapore: Academy Publishing, 2012)
at p. 160).
H [72] This court has, on several occasions, recognised that the principle of
separation of powers, and the power of the ordinary courts to review the
legality of State action, are sacrosanct and form part of the basic structure of
the FC. (See: Semenyih Jaya Sdn Bhd v. Pentadbir Tanah Daerah Hulu Langat
& Another Case [2017] 5 CLJ 526; [2017] 3 MLJ 561 at para. [90], Indira
Gandhi Mutho v. Pengarah Jabatan Agama Islam Perak & Ors And Other Appeals
I
[2018] 3 CLJ 145; [2018] 1 MLJ 545 at paras. [48], [90]).
814 Current Law Journal [2019] 5 CLJ

[73] In fact, courts can prevent Parliament from destroying the “basic A
structure” of the FC. (See: Sivarasa Rasiah (supra) at para. [20]). And while
the FC does not specifically explicate the doctrine of basic structure, what
the doctrine signifies is that a parliamentary enactment is open to scrutiny
not only for clear-cut violation of the FC but also for violation of the
doctrines or principles that constitute the constitutional foundation. B
[74] The role of the Judiciary is intrinsic to this constitutional order.
Whether an enacted law is constitutionally valid is always for the courts to
adjudicate and not for Parliament to decide. As rightly stated by Professor
Sir William Wade (quoted by this court in Indira Gandhi at para. [35]):
C
… it is always for the courts, in the last resort, to say what is a valid Act
of Parliament; and that the decision of this question is not determined
by any rule of law which can be laid down or altered by any authority
outside the courts.
Legislative Power
D
[75] It is against the background of these fundamental principles that the
appellants’ challenge falls to be considered. The appellants rely on three
Indian authorities in support of the contention that Parliament may make
law, but may not declare law so as to overrule a decision of the court. (See:
S T Sadiq v. State Of Kerala [2015] 4 SCC 400, Indira Nehru Gandhi v. Shri Raj E
Narain [1975] 2 SCC 159, and Medical Council of India v. State of Kerala (Writ
Petition (C) No. 178 & 231 of 2018)). The facts and decisions in these cases
will be examined in turn.
[76] In S T Sadiq v. State of Kerala (supra), the State Government issued
notices to and acquired ten cashew factories pursuant to the Kerala Cashew F
Factories (Acquisition) Act 1974. The ten factories challenged the
acquisition in court. The Indian Supreme Court held that the notice issued
was not in compliance with the statutory requirements and ordered the State
Government to hand the factories back to the respective owners. The State
Government then enacted the Kerala Cashew Factories Acquisition
G
(Amendment) Act 1995. Section 6 of the Amendment Act which declared
that the factories specified in the Schedule shall vest in the Government with
effect from the date stated, notwithstanding any judgment or order of court,
and notwithstanding any other law. The Schedule contained only the ten
cashew factories.
H
[77] The Indian Supreme Court held that s. 6 was unconstitutional in
directly seeking to upset a final judgment of the court. Nariman J said this
at para. [13]:

I
[2019] 5 CLJ Alma Nudo Atenza v. PP & Another Appeal 815

A It is settled law by a catena of decisions of this Court that the legislature


cannot directly annul a judgment of a court. The legislative function
consists in ‘making’ law [see: Article 245 of the Constitution] and not in
‘declaring’ what the law shall be [see: Article 141 of the Constitution] ...
It is for this reason that our Constitution permits a legislature to make laws
retrospectively which may alter the law as it stood when a decision was arrived at.
B It is in this limited circumstance that a legislature may alter the very basis of a
decision given by a court, and if an appeal or other proceeding be pending,
enable the Court to apply the law retrospectively so made which would
then change the very basis of the earlier decision so that it would no
longer hold good. However, if such is not the case then legislation which
trenches upon the judicial power must necessarily be declared to be
C unconstitutional. (emphasis added)
[78] In Indira Nehru Gandhi v. Shri Raj Narain (supra), the election of the
appellant, the then Prime Minister, had been declared void by the High
Court on grounds of electoral malpractice. The Constitution (Thirty-ninth
Amendment) Act 1975 was then enacted, purporting to insert art. 329A in
D
the Constitution. Clause 4 of the said article provided that, among others: no
law made by Parliament prior to the Amendment Act in respect of elections
shall apply to a person who held the office of Prime Minister at the time of
the election; the election of such a person shall not be void on any ground
under those laws; notwithstanding any order of court declaring such election
E to be void, the election shall continue to be valid; and any such order and
any finding on which such order is based shall be void and of no effect.
[79] The Indian Supreme Court held that cl. 4 of the Amendment Act was
invalid. Its vice was in conferring an absolute validity upon the election of
one particular candidate and prescribing that the validity of that election
F
could not be questioned before any forum or under any law.
[80] Ray CJ explained at para. [190]:
A declaration that an order made by a court of law is void is normally
part of the judicial function and is not a legislative function. Although
G there is in the Constitution of India no rigid separation of powers, by and
large the spheres of judicial function and legislative function have been
demarcated and it is not permissible for the Legislature to encroach upon
the judicial sphere. It has accordingly been held that a Legislature while it
is entitled to change with retrospective effect the law which formed the basis of the
judicial decision, it is not permissible to the Legislature to declare the judgment of the
H court to be void or not binding ... (emphasis added)
[81] In the recent case of Medical Council of India v. State of Kerala (supra),
the admission of about 150 students to some medical colleges during the
academic year 2016-17 were found to be illegal by the High Court. The
decision was upheld by the Indian Supreme Court. Subsequently, the State
I Government promulgated the Kerala Professional Colleges (Regularisation
816 Current Law Journal [2019] 5 CLJ

of Admission in Medical Colleges) Ordinance 2017 to regularise the A


admissions of those students. The Ordinance provided that, notwithstanding
any judgment, order, or any proceedings of any court, it would be lawful for
the Government to regularise the admission of those candidates for the
academic year 2016-17 whose admission was earlier on cancelled by the
court. B
[82] The Indian Supreme Court held that the Legislature could not declare
any decision of a court of law to be void or of no effect. However, it may
remove the defects in the existing law pointed out by the court. On the facts,
the case was not one of removing a defect in the law. The State Government
sought to get rid of the illegalities in the admissions without changing the C
provision of the existing law.
[83] The Ordinance was found to be invalid, being an act of nullifying a
judgment of the court which tantamount to violating the exclusive vesting of
judicial powers in the Judiciary. Arun Mishra J explained at para. [33]:
D
It is crystal clear in the instant case that the State Government has
exceeded its powers and has entrenched upon the field reserved for the
judiciary. It could not have nullified the judgment ... The provision of any
existing law framed by legislation has not been changed by the State
Government by the impugned Ordinance but illegalities found in the
admissions were sought to be got rid of. What was laid down in the E
judgment for ensuring the fair procedure which was required to be
followed was sought to be undone, it was nothing but the wholly
impermissible act of the State Government of sitting over the judgment
and it could not have promulgated the Ordinance setting at naught the
effect of the judgment.
F
[84] Read in context, the three cases above do not stand for the proposition
that any amendment to a law which has been interpreted by a court is an
impermissible encroachment into judicial power. On the contrary, the cases
clearly recognise the power of the Legislature to amend a law which formed
the basis of the decision of the court. The effect of such an amendment is not
G
to overrule the decision of the court in that case, but to alter the legal
foundation on which the judgment is founded. The earlier decision of the
court then becomes unenforceable for the interpretation of the newly
amended law. But the decision itself which led to the amendment is not
affected.
H
[85] In fact, there are plethora of decisions by the Indian Supreme Court
postulating a principle to the effect that while a Legislature does not have the
power to render ineffective a judgment of a court, it may amend the law to
alter the legal basis upon which the judgment was founded. (See for instance
Janapada Sabha Chhindwara v. The Central Provinces Syndicate Ltd [1970] 1
I
SCC 509 at para. [10]; State of Haryana v. Karnal Coop Farmers’ Society Ltd
[2019] 5 CLJ Alma Nudo Atenza v. PP & Another Appeal 817

A [1993] 2 SCC 363 at para. [37], S R Bhagwat v. State of Mysore [1995] 6 SCC
16 at para. [18]). The same principle was succinctly elucidated by the Indian
Supreme Court in the case of In the Matter of Cauvery Water Disputes Tribunal
[1993] Supp 1 SCC 96 (II) at para. [76]):
The principle which emerges from these authorities is that the legislature
B can change the basis on which a decision is given by the Court and thus
change the law in general, which will affect a class of persons and events
at large. It cannot, however, set aside an individual decision inter parties
and affect their rights and liabilities alone. Such an act on the part of the
legislature amounts to exercising the judicial power of the State and to
functioning as an appellate court or tribunal.
C
[86] The distinction between amending a law to remove its defects and
overruling a decision of the court was explained in Cheviti Venkanna Yadav
v. State of Telangana [2017] 1 SCC 283:
This plenary power to bring the statute in conformity with the legislative
D intent and correct the flaw pointed out by the court can have a curative
and neutralising effect. When such a correction is made, the purpose behind the
same is not to overrule the decision of the court or encroach upon the judicial turf,
but simply enact a fresh law with retrospective effect to alter the foundation and
meaning of the legislation and to remove the base on which the judgment is founded.
This does not amount to statutory overruling by the legislature. In this manner,
E the earlier decision of the court becomes non-existent and unenforceable
for interpretation of the new legislation. (emphasis added)
[87] On a careful reading of the three Indian authorities relied upon by
learned counsel for the appellants, we are of the view that those cases do not
render any assistance to the appellants’ broad proposition. The common
F striking feature of those cases cited is that the impugned laws had the direct
effect of overruling the outcome of the respective particular decisions by the
courts. Hence, these Indian cases are readily distinguishable from the facts
of the present appeals.
[88] In fact, as indicated earlier on s. 37A does not purport to overrule the
G
decision of the Federal Court in Muhammed bin Hassan (supra). The finality
of the decision in that case in respect of the rights and liabilities of the parties
is unaffected. The effect of inserting s. 37A is to alter generally the law upon
which that decision was based. As such premised on the principles of law
distilled from the other cases which differed for the three cases cited by
H learned counsel for the appellants, such an amendment is a permissible exercise
of legislative power and does not encroach into the realm of judicial power.

I
818 Current Law Journal [2019] 5 CLJ

[89] Thus, we agree with the learned Deputy Public Prosecutor’s A


submission for the respondent, that in inserting s. 37A, Parliament was not
overruling the decision in Muhammed bin Hassan (supra) but only complying
with the opinion of the Federal Court therein which stated that presumption
upon presumption could only be permitted if, ‘upon the wordings of the two
subsections, such an intention of the Parliament is clear’. B
[90] With respect, the broad proposition contended by learned counsel for
the appellants would have the effect of insulating a law from any change by
Parliament once it has been interpreted by the court. Taken to its logical end,
in effect, the appellants’ argument would mean Parliament is prohibited not
only from correcting defects in the law pointed out by the court, but from C
amending the law for the future once it has been applied by the court. Such
a far-reaching impact would undoubtedly constitute a significant fetter on the
legislative power of Parliament not intended by the framers of the FC. It
would upset the delicate check and balance mechanism integral to a
constitutional system based on the separation of powers. D
[91] As the bulwark of the FC and the rule of law, it is the duty of the
courts to protect the FC from being undermined by the whittling away of the
principles upon which it is based. The courts should jealously ensure that the
powers of the Legislature and Executive are kept within their intended
limits. (See: Indira Gandhi Mutho v. Pengarah Jabatan Agama Islam Perak & Ors E
And Other Appeals [2018] 3 CLJ 145; [2018] 1 MLJ 545 at paras. [33]-[34];
Semenyih Jaya Sdn Bhd v. Pentadbir Tanah Daerah Hulu Langat & Another Case
[2017] 5 CLJ 526; [2017] 3 MLJ 561 at para. [91]; Pengarah Tanah dan
Galian, Wilayah Persekutuan v. Sri Lempah Enterprise Sdn Bhd [1978] 1 LNS
143; [1979] 1 MLJ 135 at p. 148). F
[92] Indeed, barring questions on constitutionality, the role of the courts is
generally to apply and interpret the law as laid down by Parliament. It is not
for the courts to refuse to apply a new law solely on the ground that a court
had previously expressed a particular view on the unamended version of the law.
G
[93] For the reasons above, we dismiss the first ground of challenge raised
by the appellants.
Challenge Based On Articles 5 And 8
The Submissions Of Parties
H
[94] The second ground of challenge raised by the appellants is based on
arts. 5 and 8 of the FC. Learned counsel for the appellants submitted that:
(a) article 5(1) includes the right to a fair trial, which encompasses both
procedural and substantive fairness;
I
(b) for all intents and purposes, s. 37A of the DDA has the effect of
reversing the burden onto an accused to prove his or her innocence;
[2019] 5 CLJ Alma Nudo Atenza v. PP & Another Appeal 819

A (c) where double presumptions are applied, it has been held in Muhammed
bin Hassan (supra) that the burden on the appellants to rebut both
presumptions on the balance of probabilities is oppressive, unduly
harsh, and unfair;
(d) section 37A offends the requirement of fairness housed under arts. 5 and
B 8 of the FC;
(e) the right in art. 5(1) is absolute and cannot be derogated;
(f) the doctrine of proportionality does not form part of the common law
of England. It arose from the jurisprudence of the European Court of
C Human Rights; and
(g) the Federal Court in PP v. Gan Boon Aun [2017] 4 CLJ 41; [2017] 3 MLJ
12 had erred in holding that the right to a fair trial and the presumption
of innocence under art. 5 may be qualified by reference to the principle
of proportionality.
D
[95] In response, the learned Deputy Public Prosecutor for the respondent
submitted that:
(a) the right to a fair trial is implied in art. 5(1) of the FC;
(b) there are exceptions to the general rule that the accused bears no onus
E
of proof, for there are limits to what the prosecution can reasonably be
expected to prove in certain situations;
(c) there is no prohibition on presumptions in principle, provided such
presumptions satisfy the test of proportionality. (See: Gan Boon Aun
F
(supra) and Ong Ah Chuan v. Public Prosecutor [1980] 1 LNS 181; [1981]
1 MLJ 64);
(d) even where double presumptions are invoked under s. 37A of the DDA,
pursuant to s. 182A(1) of the Criminal Procedure Code the duty remains
on the prosecution to prove its case beyond a reasonable doubt based on
G all adduced and admissible evidence;
(e) the imposition of presumptions rebuttable by an accused on a balance
of probabilities strikes a balance between the public interest in curbing
crime and the protection of fundamental rights; and
(f) section 37A of the DDA, being of general application to all persons
H
under like circumstances, does not offend the right to equality under
art. 8 of the FC.

I
820 Current Law Journal [2019] 5 CLJ

Article 5: ‘… In Accordance With Law’ A

[96] We begin by acknowledging that in interpreting any constitutional


provision such as arts. 5 and 8 of the FC, certain principles must be borne
in mind.
(a) Firstly, it is trite that a constitution is sui generis, governed by B
interpretive principles of its own.
(b) Secondly, in the forefront of these interpretive principles is the principle
that its constitutional provisions should be interpreted generously and
liberally, not rigidly or pedantically. (See: Dato’ Menteri Othman Baginda
& Anor v. Dato’ Ombi Syed Alwi Syed Idrus [1984] 1 CLJ 28; [1984] 1 CLJ C
(Rep) 98; [1981] 1 MLJ 29).
(c) Thirdly, it is the duty of the courts to adopt a prismatic approach when
interpreting the fundamental rights guaranteed under Part II of the FC,
in order to reveal the spectrum of constituent rights submerged in each
article. (See: Lee Kwan Woh v. PP [2009] 5 CLJ 631; [2009] 5 MLJ 301 D
at para. [8]).
[97] Article 5(1) of the FC reads:
No person shall be deprived of his life or personal liberty save in
accordance with law. E
[98] In our view, art. 5(1) is the foundational fundamental right upon
which other fundamental rights enshrined in the FC draw their support.
Depriving a person of his right under art. 5(1), the consequence is obvious
in that his other rights under the FC would be illusory or unnecessarily
restrained. In fact, deprivation of personal liberty impacts on every other F
aspect of human freedom and dignity. (See: Maneka Gandhi v. Union of India
AIR 1978 SC 59). But at the same time art. 5(1) is not all-encompassing and
each right protected in Part II has its own perimeters. Hence, the provisions
of the FC should be read harmoniously. Indeed the fundamental liberties
provisions enshrined in Part II of the FC are parts of a majestic, G
interconnected whole and not each as lonely outposts.
[99] The importance of the right to life under art. 5 cannot be over-
emphasised. In relation to the rights to life and dignity, the South African
Constitutional Court in State v. Makwanyane [1995] 1 LRC 269 at para. [84]
states: H

Together they are the source of all other rights. Other rights may be
limited, and may even be withdrawn and then granted again, but their
ultimate limit is to be found in the preservation of the twin rights of life
and dignity. These twin rights are the essential content of all rights under
the Constitution. Take them away, and all other rights cease. I
[2019] 5 CLJ Alma Nudo Atenza v. PP & Another Appeal 821

A [100] Since the right to life is “the most fundamental of human rights”, the
basis of any State action which may put this right at risk “must surely call
for the most anxious scrutiny” (per Lord Bridge in Bugdaycay v. Secretary of
State for the Home Department [1987] AC 514 at p. 531). The courts’ role is
given added weight where the right to life is at stake.
B [101] “Law”, as defined in art. 160(2) of the Federal Constitution read with
s. 66 of the Interpretation Acts 1948 and 1967, includes the common law of
England. The concept of rule of law forms part of the common law of
England. The “law” in art. 5(1) and in other fundamental liberties provisions
in the FC must therefore be in tandem with the concept of rule of law and
C NOT rule by law. (See: Lee Kwan Woh (supra) at para. [16]; Sivarasa Rasiah
v. Badan Peguam Malaysia & Anor [2010] 3 CLJ 507; [2010] 2 MLJ 333 at
para. [17]). (emphasis added).
[102] It has been remarked that the phrase ‘rule of law’ has become
meaningless thanks to ideological abuse and general over-use.
D (See: H Barnett, Constitutional and Administrative Law, 2nd edn. (London:
Cavendish Publishing, 1998) at p. 90). Different models of the rule of law
have been adopted in different jurisdictions. (See: V V Ramraj, “Four Models
of Due Process” in OUP and New York University School of Law 2004,
I.CON Vol. 2, No. 3 at 492-524). It is perhaps opportune and necessary for
E us to outline what is generally meant by the rule of law.
[103] A central tenet of the rule of law is the equal subjection of all persons
to the ordinary law. (See: A V Dicey, An Introduction to the Study of the Law
of the Constitution, 10th edn. (London: Macmillan, 1959) at p. 202). People
should be ruled by the law and be able to be guided by it. Thus, the law must
F be capable of being obeyed.
[104] “Law” must therefore satisfy certain basic requirements, namely:
(a) it should be clear;
(b) sufficiently stable;
G
(c) generally prospective;
(d) of general application;
(e) administered by an independent Judiciary; and
H (f) the principles of natural justice and the right to a fair trial are observed.
[105] These requirements of “law” in a system based on the rule of law are
by no means exhaustive. While the precise procedural and substantive
content of the rule of law remains the subject of much academic debate, there
is a broad acceptance of the principles above as the minimum requirements
I
822 Current Law Journal [2019] 5 CLJ

of the rule of law. (See: J Raz, The Rule of Law and its Virtue (1977) 93 LQR A
195; L Fuller, The Morality of Law (New Haven: Yale University Press,
1964); T Bingham, The Rule of Law (London: Penguin Books, 2011)).
[106] It is therefore clear that the “law” in the proviso “save in accordance
with law” does not mean just any law validly enacted by Parliament. It does
not authorise Parliament to enact any legislation under art. 5(1) contrary to B
the rule of law. While the phrase “in accordance with law” requires specific
and explicit law that provides for the deprivation of life or personal liberty
(see: In Re Mohamad Ezam Mohd Nor [2002] 5 CLJ 156; [2001] 3 MLJ 372
at p. 378), nevertheless such law must also be one that is fair and just and
not merely any enacted law however arbitrary, unfair, or unjust it may be. C
Otherwise that would be rule by law.
[107] The “law” thereof also refers to a system of law that incorporates the
fundamental rules of natural justice that formed part and parcel of the
common law of England. And to be relevant in this country, such common
law must be in operation at the commencement of the FC. Further, any D
system of law worthy of being called just must be founded on fundamental
values. “The law must be related to the … fundamental assessments of
human values and the purposes of society” (per Viscount Simonds, Shaw
v. DPP [1962] AC 220 at p. 268). As persuasively argued by Lord Bingham,
the rule of law requires that fundamental rights be protected, (see: Bingham, E
The Rule of Law (London: Penguin Books, 2011 at pp. 66-68). It is also taken
for granted that the “law” alluded to would not flout those fundamental rules.
As Lord Diplock stated in no weak terms, to hold otherwise would render
the purported entrenchment of fundamental liberties provisions in the FC
“little better than a mockery”. (See: Ong Ah Chuan (supra) at p. 670). F
[108] We pause at this juncture to note that s. 37A of the DDA begins with
the phrase “notwithstanding any written law or rule of law”. For the
avoidance of doubt, the words “rule of law” in s. 37A refer to implied
ancillary rules, such as the rules of procedure or evidence. (See: FAR
Bennion, Statutory Interpretation: A Code, 3rd ed. (London: Butterworths, G
1997) at p. 805). It does not purport to exclude the rule of law as a legal
concept. If it were to be interpreted otherwise then that would be a rule by
law and could not be within the ambit of the term ‘law’ in art. 5(1) of the
FC and hence unconstitutional. It must also be emphasised here that the
principle of the rule of law, being a constitutional fundamental, cannot be H
abrogated by mere statutory words.
[109] Accordingly, art. 5(1) which guarantees that a person shall not be
deprived of his life or personal liberty (read in the widest sense) save in
accordance with law envisages a State action that is fair both in point of
procedure and substance. In the context of a criminal case, the article I
enshrines an accused’s constitutional right to receive a fair trial by an
impartial tribunal and to have a just decision on the facts. (See: Lee Kwan
Woh (supra) at para. [18]).
[2019] 5 CLJ Alma Nudo Atenza v. PP & Another Appeal 823

A [110] It has been declared as well by this court that the fundamental
principle of presumption of innocence, long recognised at common law, is
included in the phrase “in accordance with law”. (See: Gan Boon Aun (supra)
at paras. [14]-[15]). Indeed, the presumption of innocence is a “hallowed
principle lying at the very heart of criminal law”, referable and integral to
B the right to life, liberty, and security. (See: R v. Oakes [1986] 1 SCR 103 at
para. [29]). The famous statement of Viscount Sankey LC in Woolmington
v. Director of Public Prosecutions [1935] AC 462 at p. 481 is regularly quoted
as a starting point in affirming the principle:
Throughout the web of the English Criminal Law one golden thread is
C always to be seen, that it is the duty of the prosecution to prove the
prisoner’s guilt subject to what I have already said as to the defence of
insanity and subject also to any statutory exception ... No matter what
the charge or where the trial, the principle that the prosecution must prove
the guilt of the prisoner is part of the common law of England and no
attempt to whittle it down can be entertained. (emphasis added)
D
[111] It is pertinent to note that Viscount Sankey’s proviso of “any statutory
exception” was pronounced in the context of a legal system based on
Parliamentary sovereignty. Whereas in our jurisdiction, a provision of law,
although it may be in the form of a proviso, is not rendered constitutionally
valid if it “would subvert the very purpose of the entrenchment of the
E
presumption of innocence” in the FC. (See: R v. Oakes (supra) at para. [39]).
As such, in determining its constitutionality the substantive effect of a
statutory exception must be considered.
[112] Yet at the same time, it must also be taken into account that despite
the fundamental importance of the presumption of innocence, there are
F
situations where it is clearly sensible and reasonable to allow certain
exceptions. For instance, a shift on onus of proof to the defence for certain
elements of an offence where such elements may only known to the accused.
But it is not to say that in such instance the prosecution is relieved of its
burden to establish the guilt of an accused beyond reasonable doubt. In other
G
words, it is widely recognised that the presumption of innocence is subject
to implied limitations. (See: Attorney-General of Hong Kong v. Lee Kwong-Kut
[1993] AC 951 at p. 968). A degree of flexibility is therefore required to
strike a balance between the public interest and the right of an accused
person.
H
[113] In State v. Coetzee [1997] 2 LRC 593 the South African Constitutional
Court speaking through Sachs J provided clear justification on the need to do
the balancing enquiry between safeguarding the constitutional rights of an
individual from being ‘convicted and subjected to ignominy’ and heavy
sentence and ‘the maintenance of public confidence in the enduring integrity
I and security of the legal system’. Reference to the prevalence and severity
824 Current Law Journal [2019] 5 CLJ

of a certain crime therefore does not add anything new or special to the A
balancing exercise. The perniciousness of the offence is one of the givens,
against which the presumption of innocence is pitted from the beginning, not
a new element to be put into scales as part of the justificatory balancing
exercise. If this were not so, the ubiquity and ugliness argument could be
used in relation to murder, rape, car-jerking, housebreaking, drug-smuggling, B
corruption … the list is unfortunately almost endless, and nothing would be
left of the presumption of innocence, save, perhaps, for its relics status as a
doughty defender of rights in the most trivial of cases’.
[114] Hence, this is where the doctrine of proportionality under art. 8(1)
becomes engaged. C

[115] But before we deal with art. 8(1) in relation to the proportionality test,
it is perhaps apposite to note here that in Muhammed bin Hassan (supra) this
court held that to read the presumption of possession in sub-s. 37(d) “into
ss. 37(da) so as to invoke against an accused a further presumption of
trafficking (ie presumption upon presumption) would not only be ascribing D
to the phrase ‘found in possession’ in s. 37(da) a meaning wider than it
ordinarily bears but would also be against the established principles of
construction of penal statutes and unduly harsh and oppressive against the
accused. (emphasis added).
E
[116] Meanwhile, when enacting s. 37A, Parliament did not find it
necessary to amend the wordings of sub-s. 37(da) in particular the word
‘found’ therein. As such, the view given by this court on the word ‘found’
in Muhammed bin Hassan (supra) is still valid.
Article 8 And The Doctrine Of Proportionality F
[117] When interpreting other provisions in the FC, the courts must do so
in light of the humanising and all-pervading provision of art. 8(1). (See:
Dr Mohd Nasir Hashim v. Menteri Dalam Negeri Malaysia [2007] 1 CLJ 19;
[2006] 6 MLJ 213 at para. [8], approved in Badan Peguam Malaysia
v. Kerajaan Malaysia [2008] 1 CLJ 521; [2008] 2 MLJ 285 at para. [86]; Lee G
Kwan Woh (supra) at para. [12]). Article 8(1) guarantees fairness in all forms
of State action. (See: Tan Tek Seng v. Suruhanjaya Perkhidmatan Pendidikan &
Anor [1996] 2 CLJ 771; [1996] 1 MLJ 261). The essence of the article was
aptly summarised in Lee Kwan Woh (supra) at para. [12]:
The effect of art 8(1) is to ensure that legislative, administrative and H
judicial action is objectively fair. It also houses within it the doctrine of
proportionality which is the test to be used when determining whether
any form of state action (executive, legislative or judicial) is arbitrary or
excessive when it is asserted that a fundamental right is alleged to have
been infringed.
I
[2019] 5 CLJ Alma Nudo Atenza v. PP & Another Appeal 825

A [118] In other words, art. 8(1) imports the principle of substantive


proportionality. “Not only must the legislative or executive response to a
state of affairs be objectively fair, it must also be proportionate to the object
sought to be achieved”. (See: Dr Mohd Nasir bin Hashim v. Menteri Dalam
Negeri Malaysia (supra) at para. [8]. The doctrine of proportionality housed in
B art. 8(1) was lucidly articulated in Sivarasa Rasiah (supra) at para. [30]:
… all forms of state action – whether legislative or executive – that
infringe a fundamental right must (a) have an objective that is sufficiently
important to justify limiting the right in question; (b) the measures
designed by the relevant state action to meet its objective must have a
rational nexus with that objective; and (c) the means used by the relevant
C
state action to infringe the right asserted must be proportionate to the
object it seeks to achieve.
[119] Accordingly, when any State action is challenged as violating a
fundamental right, such as the right to life or personal liberty under art. 5(1),
D
art. 8(1) will at once be engaged such that the action must meet the test of
proportionality. This is the point at which arts. 5(1) and 8(1) interact.
(See: Sivarasa Rasiah (supra) at paras. [17]-[19]).
[120] This approach is consistent with that adopted in other Commonwealth
jurisdictions. Proportionality is an essential requirement of any legitimate
E limitation of an entrenched right. Proportionality calls for the balancing of
different interests. In the balancing process, the relevant considerations
include the nature of the right, the purpose for which the right is limited, the
extent and efficacy of the limitation, and whether the desired end could
reasonably be achieved through other means less damaging to the right in
question. (See: State v. Makwanyane [1995] 1 LRC 269 at p. 316).
F
[121] The United Kingdom position based on the leading cases of
R v. Lambert [2001] UKHL 37, R v. Johnstone [2003] UKHL 28, and Sheldrake
v. Director of Public Prosecutions; Attorney General’s Reference (No 4 of 2002)
[2005] 1 All ER 237 was helpfully distilled in Gan Boon Aun (supra) at
G para. [46] as thus:
(a) presumptions of fact or of law operate in every legal system;
(b) it is open to states to define the constituent elements of an offence,
even to exclude the requirement of mens rea;
(c) when a section is silent as to mens rea, there is a presumption that
H
mens rea is an essential ingredient: The more serious the crime, the
less readily will that presumption be displaced;
(d) the overriding concern is that a trial should be fair: The presumption
of innocence is a fundamental right directed to that end;

I
826 Current Law Journal [2019] 5 CLJ

(e) there is no prohibition against presumptions in principle, but the principle of A


proportionality must be observed. A balance must be struck between the general
interest of the community and the protection of fundamental rights. The
substance and effect of presumptions adverse to an accused must not be greater
than is necessary and must be reasonable;
(f) the test to be applied is whether the modification or limitation B
pursues a legitimate aim and whether it satisfies the principle of
proportionality;
(g) reasonable limits take into account the importance of what is at
stake and maintain the rights of the defence;
(h) the mischief at which the Act is aimed and the ease or difficulty that C
the respective parties would encounter in discharging the burden are
important factors;
(i) it is justified to make it for an accused to prove matters which the
prosecution would be highly unlikely to be able to know and which
it might be difficult, if not impossible for them to rebut; D
(j) relevant to reasonableness or proportionality will be the opportunity
given to a defendant to rebut the presumption, maintenance of the
rights of the defence, flexibility in application of the presumption,
retention by the court of a power to assess the evidence, the
importance of what is at stake and the difficulty which a prosecutor
may face in the absence of a presumption; E

(k) the test depends upon the circumstances of the individual case. The
justifiability of any infringement of the presumption of innocence
cannot be resolved by any rule of thumb, but on examination of all
the facts and circumstances of the particular provision as applied in
the particular case; F

(l) the task of the court is never to decide whether a reverse burden
should be imposed on a defendant, but always to assess whether
a burden enacted by Parliament unjustifiably infringes the
presumption of innocence; and
(m) security concerns do not absolve member states from their duty to G
observe basic standards of fairness. (emphasis added)
[122] The doctrine of proportionality was likewise implicit in the Hong
Kong approach to statutory presumptions in criminal law. Referring to
statutory exceptions to the presumption of innocence, the Privy Council
explained in Lee Kwong-Kut (supra) at pp. 969-970: H

Some exceptions will be justifiable, others will not. Whether they are
justifiable will in the end depend upon whether it remains primarily the
responsibility of the prosecution to prove the guilt of an accused to the
required standard and whether the exception is reasonably imposed,
notwithstanding the importance of maintaining the principle which article I
[2019] 5 CLJ Alma Nudo Atenza v. PP & Another Appeal 827

A 11(1) enshrines. The less significant the departure from the normal principle, the
simpler it will be to justify an exception. If the prosecution retains responsibility for
proving the essential ingredients of the offence, the less likely it is that an exception
will be regarded as unacceptable. In deciding what are the essential ingredients, the
language of the relevant statutory provision will be important. However what will
be decisive will be the substance and reality of the language creating the
B offence rather than its form. If the exception requires certain matters to
be presumed until the contrary is shown, then it will be difficult to justify
that presumption unless, as was pointed out by the United States
Supreme Court in Leary v. United States [1969] 23 L. Ed. 2d 57, 82, ‘it can
at least be said with substantial assurance that the presumed fact is more
likely than not to flow from the proved fact on which it is made to
C depend.’ (emphasis added)
[123] Useful guidance can also be gleaned from the case of R v. Oakes (supra).
The Canadian Supreme Court held that, in general, “a provision which
requires an accused to disprove on a balance of probabilities the existence
of a presumed fact, which is an important element of the offence in question,
D
violates the presumption of innocence”, at para. [57]. The fact that the
standard required to disprove the presumed fact is only on the balance of
probabilities does not render the reverse onus clause constitutional, at
para. [58].

E [124] Be that as it may, a provision which violates the presumption of


innocence may still be upheld if it is a reasonable limit, prescribed by law
and demonstrably justified in a free and democratic society. In this exercise,
the Canadian Supreme Court in R v. Oakes (supra) elaborated on the two
central criteria that must be satisfied, at paras. [69]-[70]:
F (i) The objective must be of sufficient importance to warrant overriding a
constitutionally protected right. The objective must relate to pressing
and substantial concerns;
(ii) The means chosen to achieve the objective must be reasonable and
demonstrably justified, in that:
G
(a) the measure must be rationally connected to the objective;
(b) the right in question must be impaired as little as possible; and
(c) the effect of the measure must be proportionate to the objective.
H [125] It is clear therefore from the local and foreign authorities above that
the presumption of innocence is by no means absolute. However, as
discussed above, derogations or limits to the prosecution’s duty to prove an
accused’s guilt beyond a reasonable doubt are carefully circumscribed by
reference to some form of proportionality test. We consider that the
I
828 Current Law Journal [2019] 5 CLJ

application of the proportionality test in this context strikes the appropriate A


balance between the competing interests of an accused and the State. (See:
Gan Boon Aun (supra)).
[126] It is notable that the doctrine of proportionality and the all-pervading
nature of art. 8 form part of the common law of Malaysia, developed by our
courts based on a prismatic interpretation of the FC without recourse to case B
law relating to the European Convention of Human Rights. As such, we are
therefore of the view that the appellants’ assertion that art. 5 confers an
absolute right upon an accused to be presumed innocent until proven guilty
and not subject to the doctrine of proportionality while disregarding art. 8,
is unsupported by authority and without basis. C

[127] To summarise, the following principles may be discerned from the


above authorities:
(i) Article 5(1) embodies the presumption of innocence, which places upon
the prosecution a duty to prove the guilt of the accused beyond a D
reasonable doubt.
(ii) The presumption of innocence is not absolute. A balance must be struck
between the public interest and the right of an accused – art. 8(1).
(iii) A statutory presumption in a criminal law, which places upon an
E
accused the burden of disproving a presumed fact, must satisfy the test
of proportionality under art. 8(1). The substance and effect of the
presumption must be reasonable and not greater than necessary.
(iv) The test of proportionality comprises three stages:
(a) there must be a sufficiently important objective to justify in limiting F
the right in question;
(b) the measure designed must have a rational nexus with the objective;
and
(c) the measure used which infringes the right asserted must be G
proportionate to the objective.
(v) Factors relevant to the proportionality assessment include, but are not
limited to, the following:
(a) whether the presumption relates to an essential or important
H
ingredient of the offence;
(b) opportunity for rebuttal and the standard required to disprove the
presumption; and
(c) the difficulty for the prosecution to prove the presumed fact.
I
(vi) A significant departure from the presumption of innocence would call
for a more onerous justification.
[2019] 5 CLJ Alma Nudo Atenza v. PP & Another Appeal 829

A The Constitutionality Of s. 37A


[128] Section 37A was legislated to permit the invocation of the two
presumptions yet there was no amendment to the wording in sub-s. 37(da).
As we have earlier noted, the Federal Court had held in Muhammed Hassan
(supra) that based on the clear and unequivocal meaning of the statutory
B wording, “deemed possession” under sub-s. 37(d) cannot be equated to
“found possession” so as to invoke the presumption of trafficking under
sub-s. 37(da). To do so would be contrary to the ordinary meaning of the
statutory language. As such, despite the insertion of s. 37A, a plain reading
of the wording in sub-ss. (d) and (da) does not permit the concurrent
C application of both the said presumptions in the prosecution of a drug
trafficking offence.
[129] Anyway, even if Parliament had amended the wording in sub-s. (da)
in accordance with the judgment in Muhammed Hassan (supra), the
fundamental question of constitutionality remains. It is for the court to
D determine whether the substance and effect of the legislation in permitting the
use of double presumptions is in line with the fundamental liberties
provisions of the FC. It is to this central issue that we now turn.
[130] We now consider the presumption of innocence and the impact of the
said section in relation to the relevant principles on proportionality test. But
E
before doing so we keep in the forefront of our minds that where the
constitutionality of a provision is challenged, there is a presumption in
favour of constitutionality and the burden rests on the party seeking to
establish that the provision is unconstitutional. (See: Public Prosecutor v. Datuk
Harun Haji Idris & Ors [1976] 1 LNS 180; [1976] 2 MLJ 116, Public Prosecutor
F v. Su Liang Yu [1976] 1 LNS 113; [1976] 2 MLJ 128, Public Prosecutor v. Pung
Chen Choon [1994] 1 LNS 208; [1994] 1 MLJ 566, Ooi Kean Thong & Anor
v. PP [2006] 2 CLJ 701; [2006] 3 MLJ 389, Gan Boon Aun (supra)).
[131] Meanwhile for clarity, the appellants’ challenge to the
constitutionality of s. 37A is only in relation to the application of a
G
presumption in addition to or in conjunction with another presumption. The
constitutionality of a single presumption under sub-ss. 37(d) or (da) is not
challenged in the present appeals. Hence, we are not addressing it as an issue
before us.

H Nature Of Presumptions
[132] To determine the effect of s. 37A, it is helpful first to consider
generally the nature of presumptions. A true presumption takes effect when,
upon the proof of one fact (the basic fact), the existence of another fact
(presumed fact) is assumed in the absence of further evidence.
I (See: C Tapper, Cross & Wilkins Outline of the Law of Evidence, 6th edn.
830 Current Law Journal [2019] 5 CLJ

(London: Butterworths, 1986) at p. 39). “The usual purpose of a presumption A


is to ease the task of a party who can adduce some evidence which is relevant
to, but not necessarily decisive of, an issue” (ibid).
[133] Presumptions can be categorised into presumptions of law or
presumptions of fact. The former involves actual legal rules, whereas the
latter are no more than frequently recurring examples of circumstantial B
evidence. (See: R v. Oakes (supra) at para. [20]). It is often true that
“presumptions of law are nothing else than natural inferences or
presumptions of fact which the law invests with an artificial or preternatural
weight”. (See: C Tapper, Cross & Tapper on Evidence, 12th edn. (Oxford:
OUP, 2013) at p. 135). C

[134] Such is the case with the two presumptions in question in these
appeals. For the presumption under sub-s. 37(d), a person’s custody or control
of a thing containing a dangerous drug, proved as a fact, (the basic fact) is relevant
to, but not decisive of, his possession and knowledge of the dangerous drug
which need not be proved but merely deemed (the presumed fact). D

[135] As for the presumption under sub-s. 37(da), a person “found” (which
denotes the need first for an affirmative finding based on the evidence
adduced) to be in possession of drugs exceeding a stipulated weight has a
logical bearing on the inference of trafficking.
E
[136] The presumptions are largely a matter of logical inference. Indeed,
even without the statutory presumption under sub-s. 37(da), a person caught
in the act of conveying a quantity of drugs much larger than is likely to be
needed for his own consumption would give rise to an irresistible inference
that he was transporting them for the purpose of trafficking, in the absence F
of any plausible alternative explanation. (See: Ong Ah Chuan (supra) at
p. 667; s. 2 of the DDA).
[137] The presumptions in s. 37 are rebuttable. The phrase “until the
contrary is proved imposes a legal burden on an accused to prove on a
balance of probabilities that he was not in possession and had no knowledge G
of the drug (sub-s. 37(d)), or that he was not in possession up to the statutory
limit in weight of the drug for the purpose of trafficking (sub-s. 37(da)) (See:
R v. Oakes (supra) at para. [24]). The weight of evidence required to rebut the
presumption would depend on the circumstances of each case. For instance,
as a matter of common sense, the larger the quantity of the drugs involved H
the stronger the inference that it was intended for the purpose of trafficking
and thus the more convincing the evidence needed to rebut it. (See: Ong Ah
Chuan (supra) at 668).

I
[2019] 5 CLJ Alma Nudo Atenza v. PP & Another Appeal 831

A [138] The word “shall” in both subsections indicates that each of the
presumptions is mandatory in nature. However, the word “may” in s. 37A
suggests that the cumulative use of double or multiple presumptions is
discretionary. But, just because it is discretionary, it does not ipso facto escape
a constitutionality scrutiny.
B [139] The effect of s. 37A on the operation of the two presumptions is
therefore as follows:
(a) once the prosecution proves that an accused had the custody and control
of a thing containing a dangerous drug, the accused is presumed to have
possession and knowledge of the drug under sub-s. 37(d). The ‘deemed
C
possession’, presumed by virtue of sub-s. 37(d), is then used to invoke
a further presumption of trafficking under sub-s. 37(da), if the quantity
of the drug involved exceeds the statutory weight limit.
(b) section 37A thus permits a “presumption upon a presumption” (as aptly
D described in Muhammad bin Hassan (supra) at p. 291).
(c) as such, for a charge of drug trafficking, all that is required of the
prosecution to establish a prima facie case is to prove custody and control
on the part of the accused and the weight of the drug. The legal burden
then shifts to the accused to disprove the presumptions of possession and
E knowledge (sub-s. 37(d)) and trafficking (sub-s. 37(da)) on a balance of
probabilities.
[140] As to the legal burden upon an accused to rebut a presumption and the
risk attached to it, the case of R v. Whyte [1988] 51 DLR (4th) 481 at p. 493
(in a passage adopted by Lord Steyn in R v. Lambert (supra) at para. [37]) is
F instructive. Dickson CJ said this:
The real concern is not whether the accused must disprove an element
or prove an excuse, but that an accused may be convicted while a
reasonable doubt exists. When that possibility exists, there is a breach of
the presumption of innocence. The exact characterisation of a factor as
G an essential element, a collateral factor, an excuse, or a defence should
not affect the analysis of the presumption of innocence. It is the final
effect of a provision on the verdict that is decisive. If an accused is
required to prove some fact on the balance of probabilities to avoid
conviction, the provision violates the presumption of innocence because
it permits a conviction in spite of a reasonable doubt in the mind of the
H trier of fact as to the guilt of the accused.
[141] Hence, for the above reasons, we are of the view that s. 37A prima facie
violates the presumption of innocence since it permits an accused to be
convicted while a reasonable doubt may exist.
I
832 Current Law Journal [2019] 5 CLJ

[142] Next to consider is whether the incursion into the presumption of A


innocence under art. 5(1) satisfies the requirement of proportionality housed
under art. 8(1).
Proportionality And Section 37A
[143] The first stage in the proportionality assessment is to establish whether B
there is a sufficiently important objective to justify the infringement of the
right, in this case the right to presumption of innocence. The legislative
objective in inserting s. 37A is to overcome the problem of the prosecution
failing to prove the element of trafficking as defined in the DDA. Drug
trafficking has been a major problem in the country. It needs to be curbed.
C
One way is to secure convictions of drug traffickers which can be considered
a sufficiently important objective and one which is substantial and pressing.
[144] The second stage of the inquiry is to consider whether the means
designed by Parliament has a rational nexus with the objective it is intended
to meet. The effect of s. 37A, as elaborated above, is to shift the burden of D
proof to an accused on the main elements of possession, knowledge, and
trafficking, provided that the prosecution establishes first the relevant basic
facts. It is at least arguable that the resulting ease of securing convictions is
rationally connected to the aim of curbing the vice of drug trafficking.
Bearing in mind that the validity of individual presumptions is not in issue
E
in the present appeals, it is not necessary for us to analyse the rational
connection between custody and control on one hand and possession and
knowledge on another, or the connection between possession and trafficking.
(See: R v. Oakes (supra) at para. [78]).
[145] The third stage of the inquiry requires an assessment of F
proportionality. It must be emphasised any restriction of fundamental rights
does not only require a legitimate objective, but must be proportionate to the
importance of the right at stake.
[146] The presumptions under sub-ss. 37(d) and (da) relate to the three
central and essential elements of the offence of drug trafficking, namely, G
possession of a drug, knowledge of the drug, and trafficking. We have already
discussed this point earlier in this judgment. The actual effect of the
presumptions is that an accused does not merely bear an evidential burden
to adduce evidence in rebuttal of the presumptions. Once the essential
ingredients of the offence are presumed, the accused is placed under a legal H
burden to rebut the presumptions on a balance of probabilities. In our view,
it is a grave erosion to the presumption of innocence housed in art. 5(1) of
the FC.

I
[2019] 5 CLJ Alma Nudo Atenza v. PP & Another Appeal 833

A [147] But the most severe effect, tantamount to being harsh and oppressive,
arising from the application of a “presumption upon a presumption” is that
the presumed element of possession under sub-s. 37(d) is used to invoke the
presumption of trafficking under sub-s. 37(da) without any consideration that
the element of possession in sub-s. 37(da) requires a ‘found’ possession and
B not a ‘deemed’ possession. The phrase ‘any person who is found in
possession of’ entails an affirmative finding of possession based on adduced
evidence. (See: Mohammed bin Hassan (supra)).
[148] Section 37A was legislated to facilitate the invocation of the two
presumptions yet there was no amendment to sub-s. 37(da). As such and as
C discussed earlier on in this judgment, to invoke a presumption of trafficking
founded not on proof of possession (which currently the subsection demands)
but on presumed possession based on proof of mere custody and control,
would constitute a grave departure from the general rule that the prosecution
is required to prove the guilt of an accused beyond a reasonable doubt.
D [149] Further, the application of what may be termed the “double
presumptions” under the two subsections gives rise to a real risk that an
accused may be convicted of drug trafficking in circumstances where a
significant reasonable doubt remains as to the main elements of the offence.
In such circumstance, it cannot be said that the responsibility remains
E primarily on the prosecution to prove the guilt of the accused beyond a
reasonable doubt.
[150] Based on the factors above – the essential ingredients of the offence,
the imposition of a legal burden, the standard of proof required in rebuttal,
and the cumulative effect of the two presumptions – we consider that s. 37A
F constitutes a most substantial departure from the general rule, which cannot
be justified and disproportionate to the legislative objective it serves. It is far
from clear that the objective cannot be achieved through other means less
damaging to the accused’s fundamental right under art. 5. In light of the
seriousness of the offence and the punishment it entails, we find that the
G unacceptably severe incursion into the right of the accused under art. 5(1) is
disproportionate to the aim of curbing crime, hence fails to satisfy the
requirement of proportionality housed under art. 8(1).
[151] Accordingly, we hold that s. 37A is unconstitutional for violating
art. 5(1) read with art. 8(1) of the FC. The impugned section is hereby struck
H down.
[152] Having struck down s. 37A of the DDA, the question now is to
determine the position of the appellants. The learned trial judges in these two
appeals invoked both the presumptions in finding the guilt of the appellants.
Since there was no challenge to the use of a single presumption in these
I
appeals, we are of the view that the invocation of sub-s. 37(d) by the learned
trial judges did not cause any miscarriage of justice to the detriment of the
appellants.
834 Current Law Journal [2019] 5 CLJ

[153] Hence, we hereby quash the convictions and sentences of both the A
appellants under s. 39B of the DDA. As we have no reasonable doubt on the
guilt of the appellants for possession of the drugs based on the evidence
adduced, we hereby substitute their respective convictions to one of
possession under s. 12(1) and punishable under s. 39A(2) of the DDA.
B

You might also like